Briggs v. Arkansas Abstract and Brief for Appellants

    IN  T H E

S i m  Court of Arkansas
CHESTER BRIGGS, ET A L ,................Appellants

vs. No. 4992
STATE OF A R K A N SA S,................. Appellee

Consolidated With
EUGENE D. SMITH, ET A L ,  Appellants

vs. No. 4994
STATE OF A R K A N SA S,......... .......   Appellee

Consolidated With
JAMES FRANK LUPPER, ET A L ,.. Appellants 

vs. No. 4997
STATE OF A R K A N SA S,........... ............. Appellee

APPEAL FROM PULASKI COUNTY 
CIRCUIT COURT 

* * *
HONORABLE WM. J. KIRBY 

Judge

ABSTRACT AND BRIEF 
FOR APPELLANTS

HAROLD B. ANDERSON and 
W ILEY A. BRANTON,

Attorneys for Appellants
Of Counsel:

Thurgood Marshall, Esq.
James M. Nabrit, III, Esq.

ARK, BRIEF PRINTING C O ., PINE BLUFF, ARK.



I N D E X
Page

Statement...............................................................  1
Points To Be Relied U p on .................................... 5
Motions For New T ria ls ................ ....  .........  6
Abstract of Testim ony........................................ 10
CHESTER BRIGGS et al V. STATE,

No. 4992 ..........................................................  10
Testimony of Witnesses for State .......... . 10

Gene Smith, Chief of P olice ....................   10
Lt. H. J. T albert...............................      11
Capt. M aack...............................................   12
Capt. Albert H aynie.......................... ........  13
Lt. D. M. C o x .................................................. 14
Capt. R. E. B rians............. ...........................  16
J. L. B ailey............................................      IT
Valetta C ates.........................................    19
Helen Holman ..................................    20
Johnny Rives ........................-.............. . 21

Testimony on Behalf of Appellants in Briggs .... 23
Frank James ...................................     23
Vernon Mott .................................   27
Charles Parker ..................................    32

EUGENE D. SMITH et al V. State No. 4994 .. 36
Testimony of Witnesses for S tate ...................... 36

Paul T erre ll.......................    36
Ernest M. Phillips.........................................  42
Lt. H. J. Talbert.............................................  45
W. T. Mitchell ....................................   46



JAMES FRANK LUPPER et al V. State,
No. 4997 .........................................................  49

Testimony on Behalf of State in Lupper........ 49
Capt. Paul T errell........................................  49
H. J. T a lbert...............................................  52
A. F. B a e r .................................................... 54
Joseph Trianfonte........................................  57
Henry L. H o lt ..............................................  59

Testimony on Behalf of Appellants..................  63
Frank James Lupper .................................  63
Thomas B. Robinson.................................... 67

Argum ent...............................................................  72
I. Acts 226 and 14 are Unconstitu­

tional in that they deny the De­
fendants due process and equal 
protection of the L a w s ..................... 72

II. The Acts have been applied in an
Unconstitutional manner..................  76

III. The Evidence was not Sufficient to
Sustain a Conviction.........................  91

IV. The Court erred in Refusing to
Give Defendants’ Requested In­
structions Numbers 3 and 5 in the 
Lupper C ase........................................ 95

V. The Judgment was Excessive and 
H arsh ..................................................  97

Page



IN  TH E

Supreme Court of Arkansas
CHESTER BRIGGS, ET A L ,..............Appellants

vs. No. 4992
STATE OF A R K A N SAS,.......................... Appellee

Consolidated With
EUGENE D. SMITH, ET A L ,..............Appellants

vs. No. 4994
STATE OF A R K A N SAS,.......................... Appellee

Consolidated With
JAMES FRANK LUPPER, ET AL, .. Appellants 

vs. No. 4997
STATE OF AR K A N SAS,.......................... Appellee

APPEAL FROM PULASKI COUNTY 
CIRCUIT COURT 

* * *
HONORABLE WM. J. KIRBY 

Judge

ABSTRACT AND BRIEF 
FOR APPELLANTS

STATEMENT OF THE CASE

During the Spring of 1960, several Negro col­
lege students were arrested in the City of Little 
Rock, Arkansas, in connection with their partici­



2

pation in a so-called lunch counter sit-in demon­
stration. There were two separate cases in the 
Pulaski Circuit Court concerning the alleged vio­
lation of Act 226 of the Acts of 1959 of the Gen­
eral Assembly of Arkansas, while a third case in­
volved the alleged violation of Act 226 and also 
Act 14 of the Acts o f 1959. Because of the fact 
that all of the cases involved the question of the 
constitutionality, application and sufficiency of 
the evidence as applied to Acts 14 and Act 226 of 
the Acts o f 1959, the Appellants filed a Motion in 
the Supreme Court of Arkansas to consolidate the 
three cases for briefing and argument, and same 
was granted by this Court.

CHESTER BRIGGS, ET AL, V. STATE 
NO. 4992

The appellants are five Negro college students, 
who entered the F. W. Woolworth Company variety 
store, and sat down at the lunch counter to request 
food service. The policy of the store has always 
been to serve only white persons at the lunch count­
er. An anonymous phone call was made to the 
Little Rock police, and the Chief of Police arrived 
at the store, ordered the lunch counter closed and 
ordered the appellants to leave the store. The ap­
pellants refused to leave the store and were arrest­



3

ed and charged with a violation of Act 226. Upon 
a trial before the Court in the Pulaski Circuit 
Court, the appellants were each fined the sum of 
$500.00 and sentenced to sixty days in jail.

EUGENE D. SMITH, ET AL, No. 4994

In this case the six defendants entered the 
Pfeifer’s Department Store in Little Rock, went to 
several counters then sat down at the lunch count­
er, seeking service. The manager requested some 
of them to leave. All of them left. One took a 
little longer than the rest. They were arrested by 
Officer Terrell as they left the store and charged 
with violation of Act 226 of 1959. Upon a trial 
before the Court, the appellants were found guilty 
and were each given a sentence o f a fine of $500.00 
and sixty days in jail, except the appellant Melvin 
T. Jackson, who was given a fine of $500.00 and 
sentenced to six months in jail. (It is not clear 
whether the appellant Jackson’s sentence was sub­
sequently reduced to equal that of his co-defend­
ants. On page 91 of the SMITH Transcript, the 
Court indicated that his sentence would be $500.00 
fine and six months, but the judgment of the Court 
shown on page 16, assesses a fine of $500.00 and 
sixty days imprisonment in each case.)



4

JAMES FRANK LUPPER, ET AL V. STATE 
NO. 4997

The appellants Lupper and Thomas B. Robin­
son entered the Gus Blass store. Lupper entered 
the lunch room on the mezzanine floor and request­
ed food service, and there is disputed testimony 
that the appellant Robinson, did likewise. There 
is disputed testimony to the effect that the man­
ager requested that they leave the store, and upon 
their failure to leave, the manager went across the 
street and found a police officer, and as they re­
turned to the store, they met the appellants on the 
main floor while appellants were apparently leav­
ing the store. The manager stated that he was 
only gone two or three minutes in getting the 
police officers. The appellants were each charged 
with a violation of Act 226 and also Act 14 of the 
Acts of 1959. These appellants requested and were 
granted a jury trial, and were convicted in the Pu­
laski Circuit Court for the violation of both Acts. 
They were each assessed a fine of $500.00 and 
given jail sentences of six months for the violation 
of Act 226, and a fine of $500.00 and a sentence of 
thirty days for the violation of Act 14.



5

POINTS TO BE RELIED UPON 
FOR REVERSAL

I. ACTS 14 AND 226 OF THE ACTS OF 
1959 ARE UNCONSTITUTIONAL IN 
THAT THEY DENY TO THE DE­
FENDANTS DUE PROCESS AND 
EQUAL PROTECTION OF THE LAWS.

II. THE ACTS HAVE BEEN APPLIED IN 
AN UNCONSTITUTIONAL MANNER.

III. THE EVIDENCE WAS NOT SUFFI­
CIENT TO SUSTAIN A CONVICTION.

IV. THE COURT ERRED IN REFUSING 
TO GIVE DEFENDANTS’ REQUEST­
ED INSTRUCTIONS NUMBERS 3 AND 
5 IN THE LUPPER CASE.

V. THE JUDGMENT WAS EXCESSIVE 
AND HARSH.



6

IN THE
PULASKI COUNTY CIRCUIT COURT 

FIRST DIVISION

STATE OF ARKANSAS 
vs.

CHESTER BRIGGS, ET AL

MOTION FOR NEW TRIAL

The defendants alleged the following as 
grounds for a new trial:

1. Because the Court erred in overruling the 
defendants’ Motion to dismiss the charges filed 
herein, at which action of the Court, defendants 
saved their exceptions.

2. Because the findings and judgment of the 
Court are contrary to the law.

3. Because the findings and judgment of the 
Court are contrary to the evidence.

4. Because the findings and the judgment 
of the Court are contrary to the law and the evi­
dence.

WHEREFORE, defendants pray that the 
findings and judgment of the Court be set aside, 
that they be granted a new trial of this action.



7

IN THE
PULASKI COUNTY CIRCUIT COURT 

FIRST DIVISION

STATE OF ARKANSAS 
vs.

EUGENE D. SMITH, ET AL

MOTION FOR NEW TRIAL

The defendants alleged the following as 
grounds for a new trial:

1. Because the Court erred in overruling the 
defendants’ Motion to Dismiss which was filed 
prior to the hearing of the evidence over the ex­
ceptions of the defendants.

2. The Court erred in overruling defend­
ants’ oral Motion to declare Act 226 unconstitu­
tional for vagueness.

3. Because the Court erred in overruling de­
fendants’ Motion for a direct verdict after the 
State had rested.

4. Because the verdict was contrary to law.
5. Because the verdict was contrary to the 

evidence.
6. Because the verdict is contrary to both 

the law and the evidence.



8

7. Because the judgment is excessive.

WHEREFORE, defendants pray that the 
judgmet heretofore entered in these cases be va­
cated and that each of said defendants be granted 
a new trial.

IN THE
PULASKI COUNTY CIRCUIT COURT 

FIRST DIVISION

STATE OF ARKANSAS 
vs.

FRANK JAMES LUPPER, ET AL

MOTION FOR NEW TRIAL

The defendants alleged the following as 
as grounds for a new trial:

1. Because the Court erred in overruling the 
defendants’ Motion to Dismiss which was filed 
prior to the hearing of the evidence over the ex­
ceptions of the defendants.

2. The Court erred in overruling defend­
ants’ oral Motion to declare Act 226 unconstitu­
tional for vagueness.

3. Because the Court erred in overruling de­
fendants’ Motion for a direct verdict after the 
State had rested.



9

4. Because the Court erred in overruling de­
fendants’ Motion for a directed verdict after the 
State and the defendants had rested.

5. Because the Court erred in giving to the 
Jury the State’s requested Instructions No. 1 and 
1-A over the objections and exceptions of the de­
fendants.

6. Because the Court erred in giving to the 
Jury the State’s requestion Instruction No. 2, over 
the objections and exceptions of the Defendants.

7. Because the Court erred in giving to the 
Jury the State’s requestion Instruction No. 3, over 
the objections and exceptions of the Defendants.

8. Because the Court erred in giving to the 
Jury the State’s requested Instruction No. 4, over 
the objections and exceptions of the Defendants.

9. Because the Court erred in refusing to 
give to the Jury the Defendants’ requested Instruc­
tion No. 3, over the objections and exceptions of 
the defendants.

10. Because the Court erred in refusing to 
give to the Jury the defendants’ requested Instruc­
tion No. 5, over the objections and exceptions of 
the defendants.

11. Because the verdict was contrary to law.



10

12. Because the verdict was contrary to the 
evidence.

13. Because the verdict was contrary to both 
the law and the evidence.

14. Because the judgment is excessive.

WHEREFORE, defendants pray that the 
judgment heretofore entered in this case be va­
cated and that each of said defendants be granted 
a new trial.

ABSTRACT OF TESTIMONY

CHESTER BRIGGS, ET AL 
VS. NO. 4992 

STATE OF ARKANSAS

GENE SMITH, Chief of Police, Little Rock 
Police Department, witness for the State, testified 
as follows: (Tr. 51-56)

On March 10,1960,1 went to Woolworth store 
having been advised by Capt. Maack that there 
was a sit-down strike at the lunch counter. Ac­
companying me were Capt. Haynie and Lt. Cox. 
Lt. Talbert was there when we arrived. Approxi­
mately fifty  Negroes were sitting at the lunch 
counter which seated fifty-nine people. The Ne­



11

groes were reading. I asked the Assistant Man­
ager if he had asked them to leave. He said that 
he did not have that authority. I asked him to 
close the restaurant to everyone. The waitresses 
removed the perishables. I told the individuals 
sitting at the counter that the restaurant was 
closed to everyone and for them to disperse in 
order to keep down trouble. All but five left. They 
were placed under arrest to get them to leave. 
Quite a few people were congregated at the side 
entrance of the store in front. People were lined 
up three or four feet behind the stools. I was ad­
vised that the management did not ask the defend­
ants to leave the premises. The defendants did not 
talk loud nor did they resist in any manner. I do 
not know who placed the call to the police depart­
ment.

LT. H. J. TALBERT, Little Rock Police De­
partment, witness for the State, testified as fol­
lows: (Tr. 56-66)

I was requested by the Radio man to go to 
Woolworth’s. Immediately upon arrival, I saw 
fifty  Negroes seated at the lunch counter. One 
white lady was seated about the middle. I asked 
the white people who were standing there to move 
back from the counter. Some of them were mad.



12

I pushed them from the aisles and back from the 
front. I asked for the Manager and was advised 
he was on the telephone calling long distance. 
Chief Smith arrived and he took over. The crowd 
was standing right behind the Negroes. The ten­
sion among the whites was very high. Some of 
them asked me what I was going to do. I heard 
an officer ask the defendants to leave. All left but 
five. The lunch counter was closed and no one 
was being served. Defendants did not make any 
.statement, nor were they loud or using abusive or 
profane language. Did not threaten or intimidate 
anyone.

CAPT. MAACK, Little Rock Police Depart­
ment, witness for the State, testified as follows: 
(Tr. 66-78)

I made an investigation at Woolworth’s store 
on March 10, 1960, with reference to a complaint 
that came to me from Mrs. Shemwell, who stated 
that an unknown person had called and stated that 
the sit-downers were there on strike. I accompa­
nied Chief Smith, Capt. Brians and Lt. Cox. People 
lined the counter and crowded the streets in front 
and back of the store. The Chief talked to the 
Assistant Manager. We advised everybody to 
leave the counter. It was closed. Tension seemed



13

high. I talked to the defendant Mott and told him 
three times that the counter was closed and if they 
didn’t leave we would have to arrest them. He 
told me to go ahead he wanted to be arrested. I 
informed Chief Smith of this and he said all right, 
we will just arrest the whole five. We did. On 
leaving the store I placed my hand on Mott’s 
shoulder in case he should run. He told me to 
take my damn hands o ff of him. I did not notice 
any loud, profane or vulgar language by oneone 
except Mott. None of the defendants made any 
threats.

CAPT. TALBERT HAYNIE, Little Rock Po­
lice Department, witness for the State, testified as 
follows: (Tr. 78-87)

On March 10, 1960, I assisted in the investi­
gation at Wool worth’s with Chief Smith, Lt. Tal­
bert, Capt. Brians and Sgt. McNeeley and others. 
The five defendants were seated at the counter 
with their backs to the counter. Chief Smith had 
already given orders that the five were under ar­
rest and we filed out with them. When we got to 
the door, I made the remark, “ Better get hold of 
their arms, they might run when they hit the side­
walk.”  Capt. Maack got Mott by the arms and 
Mott said, “ Get your hands o ff m e!”  Capt. Maack



14

told him him “ You are under arrest”  and they put 
him in the wagon. I know they were ordered to 
leave the closed lunch counter. I did not observe 
them refusing to do so. When Chief Smith order­
ed, “ Let’s go” , they all got off the stools. I did not 
hear the officers request them to leave before that 
time. I did hear Mott say just what I have testi­
fied to. The tension of the crowd was very high 
when I arrived. The store was full of people. I 
couldn’t guess how many. There were a lot of 
people on the sidewalks at the front and at the side 
doors. The officers had the aisle clear when I ar­
rived there. I did not hear any profane language 
or threats from the defendants to this group or 
anybody at all. They did not resist arrest. I led 
one of the defendants to the patrol wagon myself. 
He gave me no trouble at all. I do not know who 
placed the call to the police station. I did not talk 
to the Assistant Manager at Woolworth’s. I have 
not learned yet who placed the call to the station.

LT. D. M. COX, Little Rock Police Depart­
ment, witness for the State, testified as follows: 
(Tr. 87-94)

I went to Woolworth’s in Little Rock, Arkan­
sas, to make an investigation on that date. It was 
shortly before noon, accompanied by Capt. Brians



15

and Sgt. Shemwell. I observed approximately 
forty Negroes sitting on the stools at the counter 
at Woolworth’s. The white people were lined up 
in the store at the rear o f them. There was an 
aisle and the officers were there at that time hold­
ing the crowd back, or the crowd gathered along 
an aisle between them. It was more than a normal 
crowd in the store. The demeanor attitude of this 
crowd was very tense. Some were numbling 
threats or they were mumbling, and the officers 
were holding them back. I didn’t have to push 
anyone back, but they were being held back some. 
I estimated forty Negroes sat at the counter. I 
heard Chief Smith tell them that the counter was 
closed and all but five left. These five are present 
today in Court. They did not leave the store. They 
continued to read books and newspapers. Only 
five were left at the counter. When we were tak­
ing them to the patrol wagon, I heard Mott tell 
Capt. Maack to take his hands o ff him. I also 
heard him say he wanted to be arrested. We went 
to Woolworth’s in a patrol wagon, parked it on 
Fourth street across the street from Woolworth’s. 
I heard one person in the crowd say that we will 
do something about it, but there was mumbling to 
the effect that they shouldn’t just stand there. 
There was some whispering among the defend­



16

ants— no loud talking between them and the crowd, 
nor any threatening attitude toward the crowd. 
On the way out of the store, Mott told the officer 
to take his damn hands o ff him, but none of the 
defendants said anything or did anything but sit 
there. The defendants did not refuse to leave 
when we told them they were under arrest.

CAPT. R. E. BRIANS, Little Rock Police 
Department, witness for State, testified as follows: 
(Tr. 95-105)

I made an investigation at Woolworth’s on 
March 10, 1960. We received information that 
there was a disturbance. There was people con­
gregated inside the building. We pushed our way 
through into the lunch counter. There were a 
number of white people around the back door and 
had the door virtually blocked. The situation was 
very tense. There was considerable mumbling 
among the white people. The colored people sit­
ting at the counter were reading textbooks, news­
papers. The colored people were asked to leave 
and all left but five, and they were placed under 
arrest. I heard Chief Smith when he told the peo­
ple to leave, that the counter was closed. The situ­
ation was in considerable turmoil. The white peo­
ple was at the point of virtually coming to blows.



17

One person made the comment, “ Let’s have a 
lynching party.”  I did not notice the defendants 
make any threatening remarks to anyone. I heard 
no loud or profane language or violent noise. I 
could see no resistance. So far as I could tell they 
cooperated willingly with the police. No one struck 
these defendants. I saw no clubs or weapons in 
the group. It would have been impossible to iden­
tify the man who indicated he wanted a lynching, 
because the crowd was there. I didn’t mention 
this lynching remark in Municipal Court because 
I wasn’t asked that question.

J. L. BAILEY, Assistant Manager, Wool- 
worth’s Store, witness for the State, testified as 
follows: (Tr. 105-115)

I’m Assistant Manager of Woolworth’s store. 
On March 10, 1960, I observed the police coming 
in. I did not call them. The lunch counter was 
closed when the police got there. I closed it. I 
was instructed from my home office to do so. I 
did so because Negroes came in and sat down. 
The counter was closed to everyone. Charlene 
Elliott, Helen Holman and Mildred Wright were 
working there. I don’t know the exact number of 
colored people that sat at the counter. I did not 
ask them to leave. I observed the actions of the



18

police when they got there. They just came in and 
stood around. I saw some colored people leave the 
counter when the police came in. Five stayed. The 
attitude of the other patrons toward the counter—  
they seemed to be disturbed. The defendants en­
tered during the regular serving hour. We don’t 
have any policies regarding Negro patrons. We 
will sell anything to anybody. We have a take-out 
service for Negroes. I don’t know what percent­
age of our business is composed of Negroes. We 
do have Negro patrons. I don’t know the policy 
of our lunch counter regarding service at the 
counter for Negroes. Haven’t had that phase of 
training yet. We don’t allow them to come in and 
sit down with white folks. We had no facilities 
for them to sit down at all. I didn’t call the police 
department and don’t know who did. We tried to 
find out, but we couldn’t. The counter wasn’t 
closed when they took their seats, but I closed it. 
I didn’t ask anyone to leave, nor did I request the 
police department to do so. The Manager was out 
of town and I was in charge at that time. I don’t 
know who asked the defendants to leave, but I 
didn’t. None of my employees did. I did not hear 
any of the defendants use any loud noise or pro­
fane language, or anybody saying anything. No 
threats were made in my presence. The five just



19

went out with the police. After it was called to 
my attention that these defendants and their as­
sociates had taken seats at the counter, I called my 
home office in St. Louis. I had been instructed 
to do so. They told me to close the counter, which 
I had already done. They sent a letter out to the 
store to close the counter and call the home office. 
Woolworth’s is a private corporation.

VALETTA CATES, Fountain Manager at 
Woolworth’s witness for the State, testified as fol­
lows: (Tr. 115-118)

I have worked at Woolworth’s for four years, 
was working there on March 10, 1960. I was up­
stairs in the store about noon on that date. I 
wasn’t downstairs to observe any large number of 
people come in and sit down. When I came down­
stairs, I saw a bunch of colored people sitting at 
the counter. I didn’t observe anyone of these pa­
trons leave. Nor did I observe the police asking 
anyone to leave the store. I testified in this case 
in the lower court a month ago. I saw the police 
talking to these Negroes sitting at the counter. I 
don’t know what they were saying. I saw them 
take some of them out, but I don’t know whether 
they arrested them. There was a crowd up and 
down all through the store there —  just up and



20

down milling around —  just kind of curious on­
lookers.

HELEN HOLMAN, Waitress at Woolworth’s, 
witness for the State, testified as follows:

I have worked at Woolworth’s about a year 
and a half. Was working there on March 10,1960. 
On that date, the colored boys came to the counter 
and sat down. I guess about half o f the counter. 
I had been instructed to leave the counter if they 
came in. They came in about 11 :00 or 11:30. I 
didn’t stay. I left. I couldn’t say if they occupied 
about half of the stools, but they were seating 
themselves as I left. There were some white peo­
ple sitting there. I had been instructed to leave 
the counter by Mrs. Cates. I left Mrs. Wright at 
the counter. I did not close the counter, since I 
did not have the authority. I don’t know that Mr. 
Bailey closed it or not. I left before the police ar­
rived. I didn’t call them. I didn’t say that my in­
structions were to leave the counter if  Negroes 
came in. My manager told me to leave the count­
er. I don’t remember if  I testified in Municipal 
Court on March 17th that I was instructed to leave 
the counter if  Negroes sat down. My manager had 
not instructed me with reference to service of Ne­
groes at that time. We do have a take-out counter



21

there to serve Negroes, but we don’t serve them 
when they sit down. 1 am instructed to have the 
take-out service. That is all we have. I have never 
served Negroes at the counter. It would take spe­
cial instruction from the manager for me to serve 
Negroes at the counter.

JOHNNY RIVES, witness for the State, tes­
tified as follows:

(Testified in Municipal Court and his testi­
mony made a part of the record in Circuit 
Court). (Tr. 50).

On March 10, 1960, about 11:30 I was sitting 
on the second stool at the front door going in. A f­
ter I finished my pie, I looked down the counter 
and there were a number of Negroes sitting down. 
There was one sitting by me. I got up and left. I 
don’t know how many Negroes occupied stools 
there, but there were quite a number. More than 
half the stools were occupied. I didn’t call the po­
lice. I don’t know who called them. I was there 
when they were arrested. The police took stations 
behind the occupants of the stools, then Chief 
Smith came in and walked to the back— came back 
up to the front of the store— told each one— not 
everyone— but o ff and on— that the counter was 
closed. Some got up and left by the front door and



22

back door. There were about half a dozen sitting 
near the center of the store. They didn’t leave. 
The police took them out the back door, after that 
I don’t know. I didn’t hear any conversation be­
tween the police and these five. I didn’t see the 
police talking to them as they left. A crowd gath­
ered after the police arrived in the store —  you 
know how curious —  I had been there only long 
enough to eat a piece of pie. There were waitresses 
behind the counter and some other patrons sitting 
at the counter. After the Negroes arrived and one 
took a seat next to me, I got up and left the counter 
and walked around behind the cosmetics counter 
next to the lunch counter. I didn’t notice anything 
going on behind the counter at that time. The girls 
left from back of the counter. I noticed them walk­
ing to the back of the store, after these defendants 
and their associates took seats. I did not notice 
them using loud, vulgar or abusive language. They 
did not make threats to me nor did I hear them 
make threats to anyone else. People wTere coming 
in the store curious as to what was going on. I 
visit Woolworth’s approximately three times a day, 
six days a week. The lunch counter is generally 
open during those hours. I did not observe the 
waitresses serving anyone —  either colored or 
white.



23

PRANK JAMES, one of the defendants, tes­
tified on his own behalf, as follows; (Tr. 128-144)

I am a student at Philander Smith College. I 
am 21 years of age. I am in my third year of 
college. I and the defendants here were in Wool- 
worth store on March 10th of this year. I have 
had occasion to visit Woolworth’s from two to 
three times a w7eek since I have been in Philander 
to purchase various articles. On March 10th some­
where around eleven o’clock, Ledridge Davis, who 
is one of the defendants and myself went into 
Woolworth’s. He purchased a package of enve­
lopes from the counter and then we went to the 
lunch counter where we took seats. I had suffi­
cient funds in my possession with which to make 
purchases at the lunch counter, if I had been 
served. The only thing that I did was to look over 
the menu and the waitress didn’t approach me for 
any request. I saw food out there on the counter, 
on the steam table. There were other patrons sit­
ting there, white and colored. There were white 
people sitting at the counter. I think there was a 
lady sitting to my right as I sat down and after 
she finished her meal she left. She didn’t get up 
until after she had completed her meal. The man­
ager of the store did not approach me or ask me to 
leave. None of the employees asked me to leave.



24

The first person to contact me in reference to leav­
ing was, I think, Chief Smith and he was the only 
one. I did not use any profane language or any 
threats of any kind to anybody there in the store. 
To my knowledge, none of the other Negroes who 
were there with me used any profane language or 
any threats. I didn’t notice very much of a crowd 
in the way of noise because I was facing the count­
er and if there was a crowd it was behind me and I 
didn’t notice any disturbance until after the of­
ficers arrived and began walking up and down the 
aisle behind us. I didn’t hear any remarks until 
after the officers arrived. I heard one lady, make 
a statement like this, “ What are we going to do 
now?”  She was asking someone, I presume. I 
did not make any threatening remarks or any 
threatening conduct towards anybody in the rear. 
I didn’t see Mott perform any unusual activity. I 
didn’t hear Mott make any statements. I did not 
hear him say anything. I think Whoever the of­
ficer was that had me, we were in front of Mott 
while we were proceeding outside. In my opinion, 
during my three years at Philander and for my­
self and the organizations that I represent, I have 
made various purchases at Woolworth’s. This in­
cludes the counter where they sell staples, staple 
guns, etc., and school supplies there, etc., and I had



25

noticed the lunch counter and I had never seen any 
Negroes sitting there, but it was in my opinion, 
that since we were of the public and the doors were 
open to the public that since we could purchase at 
the counters where they sell these toilet articles, 
that we should be permitted to sit at the lunch 
counter. This was too a part of the store and if 
the policy permitted us to purchase at one counter, 
in my opinion, I didn’t see any reason why we 
shouldn’t try to purchase at another counter.

I have been in Little Rock since I have been 
attending school. I have frequently patronized 
Woolworth’s to make purchases for the Junior 
Class, the Panhelenic Council, for Alpha Phi Fra­
ternity. I went there with another person. That 
was Davis. I knew ahead of time I, with Davis, 
was going to make a purchase and then go to the 
lunch counter and ask for service there. I wouldn’t 
say it was a scheme. I was not directed to do it 
by anybody. The only meeting I would say was 
the morning of the attempt as we were getting 
ready to go down. The meeting was there in front 
of the Student Union Building on the campus. No 
one as I know of called that meeting together. I 
don’t know how many were present. There were 
more than five, I would say, and less than 100. 
This discussion had arrived out of a general dis­



26

cussion on the campus from association with fel­
low students. This had been discussed, I supposed 
among the students on the campus since February 
when this first demonstration took place in North 
Carolina. I and others on this campus discussed 
doing the same thing in Little Rock. I don’t know 
of any leader. I walked downtown. I assume the 
others walked. There was no meeting where some­
one directed me and advised me how to do it. I 
have never been served at the lunch counter before, 
but I had frequently been in the store. I had never 
observed colored people sitting there and being 
served. I didn’t know it wasn’t the custom then. 
I had never seen it done before. I wasn’t told by 
anyone what to do if  the police came in there. I 
expected to be arrested when the police told Mott 
that if  we didn’t leave that we would be arrested, 
I was present when all of them left except me and 
these other four defendants. I got up from where 
I was sitting, when the police asked me to. As I 
stated, I was quite a ways from Mott and some of 
these other fellows and I walked down to where 
they were, I had really anticipated on leaving at 
that time, but then I decided that I wasn’t going 
to leave if  they weren’t going to leave. I am in the 
third year in college. I heard the police ask me 
to leave. I didn’t leave until I was told I was un­



27

der arrest. I don’t recall hearing distinctly what 
Mott said. I didn’t hear him say, “ I want to be 
arrested” . While I was sitting at the counter, I 
looked over the menu and I had my books in my 
hand. I had a book as I have over there now. I 
carried a book with me to the store. At the time 
I left, I had planned to get back in time for class 
I had a class that evening at 1:30. No one ever 
approached me so I could place an order. The first 
that I realized the counter was closed was when 
Chief Smith told me the counter was closed, and 
we would have to leave. I refused to leave until 
he told me that I was under arrest. I left because 
he told me I was under arrest and come go with 
him to the paddy wagon or something.

VERNON MOTT, one of the defendants, tes­
tified as follows: (Tr. 144-158)

My name is Vernon Mott. I am nineteen years 
old, a member of Philander Smith College and am 
currently in school at this time. I am in my First 
year in Philander Smith College, a Freshman. On 
March 10th I had occasion to visit Woolworth’s 
store. I went to show the manager and the people 
of Little Rock and State of Arkansas and of the 
United State sthat we— I disapproved of the dual 
service that he had in his store and if I was able



28

to buy one one side of the store I should be able to 
buy on the other. I went to the lunch counter as a 
patron there to show that, and sat down. I sat 
down with my fellow students of Philander Smith 
College, and the people that were sitting there be­
fore I got there and they continued eating and the 
lady that was sitting next to me, well, she finished 
her food and she put her money on the table and 
she left and all of a sudden I heard police sirens 
and they came into the store and they asked some 
people to leave the counter. They asked the white 
people to leave first and then Chief Smith came in 
and told us that the counter was closed and that 
we would have to leave. Some fellow students got 
up and left and I turned to leave and then I sat 
back down. The counter was not closed at that 
time to my knowledge. A  waitress didn’t approach 
me to serve me at any time. After I sat down again 
I heard the police chief say that the counter was 
closed, that I would have to leave or be arrested. 
I don’t remember what officer it was, came to me 
and he said the counter was closed, you have to 
leave or be arrested and I said, “ Well, I guess I 
have to be arrested.”  I then left the store with the 
police officer. As I left out of the store, leaving 
the store, no one had their hands on us. We walk­
ed out the door. As soon as I walked out the door



29

on the street, someone grabbed me by the seat of 
the pants like he was putting something down the 
back o f my pants and I turned around and I said, 
“ Don’t put anything on me,”  and that is the only 
statement I made. I didn’t say “ Take your damn 
hands o ff of me.”  I said, “ Don’t put anything on 
me.”  I felt— in the other cities that these demon­
strations have been going on, I had heard of people 
putting things down in your pants, trying to put 
weapons on you and put his hands on me of i f  he 
was putting something down in my pants. I was 
afraid this might be occurring then. I felt I was 
asserting my Constitutional right to be served in 
a store when I took a seat at the counter. I was 
not about to resist the officer in any way. While 
sitting in the store, I didn’t make any threatening 
gesture toward anyone. I wasn’t using any pro­
fanity. I didn’t make any statement to anyone 
other than the officer. Nobody in the crowd made 
any threats toward me. I saw a crowd gathering 
only after the police arrived. They came into the 
store and started walking behind us and asked the 
white people to leave the counter. The people that 
were shopping there is about all was in the store 
that day at that time. I didn’t see any kind of 
crowd that seemed to be threatening.

I am in college as a first year student. Have



80

traded at Woolworth’s before, quite often, some­
times two or three times a week. I have never sat 
at the lunch counter before. I hadn’t observed 
colored people sitting there before. I didn’t know 
that wasn’t the custom then. I had not observed 
them doing it. We don’t have a leader. There was 
no meeting where I was instructed as to what to 
do. It was just a volunteer t hing on my and other 
student’s part. I got the idea from the students 
demonstrations in North Carolina and other states.
I am not the leader of the group. I didn’t have a 
meeting bef ore March 10 as to what I was going to 
do and when. As I discussed to the students and 
generally in groups they would be talking about 
it. You would walk up to the fellows and they 
would be talking about it. Nobody told me to do 
this. I had discussed it since February. They are 
picking on "Woolworth’s store all over the nation 
to. This wasn’t a scheme to pick on stores in other 
states. We didn’t pick on it. We sat down there 
because they were sitting down in other states in 
Woolworth’s. We selected stores where we trade. 
We were not instructed or taught, nor encouraged 
by the NAACP to do this, nor any of its officers. 
No one seemed to be the leader among the stud­
ents. I didn’t tell the officers I wanted to be ar­
rested. I heard the officers say, “ The lunch count­



31

er is closed.”  The officers asked me to leave then. 
I didn’t leave. I refused to leave, because I am an 
American citizen and I didn’t feel I was breaking 
any law. I just sat there I didn’t say that to the 
officers. When I was sitting there people there 
were just shopping in the store and after the police 
arrived, the people seemed to be looking to see 
what happened as far as I know. I sat down in the 
store and looked at the menu and saw what I was 
going to order. No one said anything to me. I 
don’t know the exact number of us there. I walked 
there with Chester Briggs. I know what I was go­
ing to do when I got there. I went there in mind 
to be served. I didn’t know that there was some 
Acts o f our Legislature that made that against the 
law. I went there in mind with Briggs knowing 
that I was going to sit down at the lunch counter. 
I don’t know how many were going to be there. 
Other said they might go. I told the officer not to 
put anything on me. I didn’t see the officer as I 
stepped out the door. As I stepped out someone 
grabbed me by the seat of my pants and I turned 
around and said, “ Don’t put anything on me,”  and 
it was the officer. I meant by that I thought some­
body was going to slip something on me. I wouldn’t 
ordinarily go in a store with a weapon on me. I 
was fearful that someone would put a weapon on



32

me because I have heard that this was going on in 
other states, that they were putting things on 
somebody. I read that in the newspapers. Not in 
a meeting. I hadn’t been to any meeting. This was 
not made a deliberate scheme. I might have seen 
this in other instances or even from television I 
was fearful that might be the result. I was seek­
ing by peaceful means to persuade the manager of 
the store that segregation is morally and legally 
wrong. I didn’t anticipate disturbing the peace, 
becoming violent or abusive or threatening in any 
manner.

CHARLES PARKER, one of the defendants, 
testified as follows: (Tr. 159-167)

My name is Charles Parker. I am a student 
at Philander Smith College. I have been a student 
at Philander Smith College for three years. I am 
a Junior. I was present at Woolworth’s on March 
10, 1960. Myself and a group of the other students 
went to Woolworth’s to show the manager that we 
were not in accord with his dual system of serving 
us on one side of his store and refusing our service 
on the other side of the store. While at Philander 
I and other students at Philander have quite often 
traded with Woolworth’s and we felt that we 
should and we deserved to be served at the counter



SB

just as any other citizen of Arkansas of the United 
States.

My purpose in going there was to peacefully 
persuade the manager to treat me as he would his 
other customers. I went and took a seat at the 
counter. When I sat down, I sat next to some 
white person and there was a large number of 
white people, but who were eating when I sat down, 
and they continued sitting down until the police­
men arrived and told them they would have to 
leave. At this time they hadn’t told the students 
or the colored people to leave. They only told the 
white people eating there to leave. Some of them 
got up, but a man that was sitting next to me and 
some other people finished eating what they had 
been served and after they had finished they got 
up and left. There was a waitress behind the 
counter. She was doing something with some pies. 
There was food on the counter. While sitting there 
I looked over the menu, I was waiting to be served. 
I didn’t at any time threaten anyone, or use any 
profane language. Things were very quiet until 
the policemen arrived with sirens blasting and a 
lot of them came in. One officer, Officer Talbert, 
came in and began pushing people. There were 
some people who were objecting and there was a 
group of people that was coming to the counter.



34

He pushed these people back and told them all to 
move back. He kept going up and down the line 
pushing and shoving. Some of the students who 
got up from the counter remained on the scene 
looking on and there was another group of people 
that came in to see what the officers were doing 
when they arrived. The officers didn’t say any­
thing to me directly. It was my purpose to assert 
what I considered to be a normal Constitutional 
right. After we had been placed under arrest, we 
were walking through the store out the side door. 
None of the officers had taken a hold of us at that 
time. Immediately after we walked out of the 
store we were crossing the street. The officer that 
was behind Mott —  I was directly behind Mott, 
grabbed Mott by the seat of his pants and Mott 
said, “ Don’t put anything in my pants.”  The man­
ner in which the officer grabbed Mott, well, he had 
Mott by his back pocket and I was supposing Mott 
thought he was going to put something in his pock­
et as he said. I saw him put his hands in his back 
pocket. One officer said, “ You had better grab 
him. He might run.”  Mott said, “ Don’t put any­
thing in my pocket.”



35

CROSS EXAMINATION

I have never been arrested, convicted of any­
thing. I haven’t demonstrated, participated in any 
sit-downs before this occurrence and I have not 
participated in any sit-downs after this occurrence. 
I would say that there wasn’t any leader. This is 
more or less a spontaneous reaction by all students 
being as how each of us had an obligation as citi­
zens to try to get the rights that we deserve. We 
hadn’t planned to do this at any time before March 
10. There had been general discussion of this whole 
problem of segregation before this sit-down demo- 
stration in North Carolina, February and after. 
I had only discussed this on campus. Since I am 
not familiar with many places that are o ff campus, 
most of my activities are confined to the campus. 
It was strictly a student movement. I walked to 
the store with Frank James. I didn’t go to demo- 
strate I went to show the manager that I did not 
like his policy of dual service. I had never seen 
another Negro being served at his counter. Ap­
proximately 30 of us sat down there. Everyone 
left when the police asked them to leave except the 
men that are here as defendants. There was no 
type of agreement that all would leave except that 
five. I did not know there was any law asserting 
that we could not remain at the counter or we



would be punished if  we did not leave, I heard the 
police ask up to leave.

EUGENE D. SMITH, ET AL 
vs. No. 4994

STATE OF ARKANSAS

PAUL TERRELL, Little Rock Police Depart­
ment, witness for the State, testified as follows: 
(Tr. 44-58)

Was working on April 18, 1960. On that 
date, I made an investigation of an alleged act at 
Pfeifers Store on Main Street in Little Rock, A r ­
kansas. Officer Talbert and Officer Phillips were 
with me. We observed some Negro boys walking 
the street in groups and noticed a lot of people fol­
lowing them. We noticed them go into Pfeifer’s 
Department Store, and I went in the store and the 
lunch counter. Mr. Mitchell, manager of the lunch 
counter and Officer Phillips were talking. I walk­
ed over and talked to them at the lunch counter. 
Six boys came in the store at different intervals 
and walked around over the store looking at dif­
ferent things, didn’t make a purchase as I saw. 
They went to different departments. All came in 
about the same time and began taking places at the 
lunch counter at Pfeifer’s. They took different



37

intervals about the lunch counter. I was in civilian 
clothes. One walked in and made a point to sit 
between white ladies and Mr. Mitchell walked in 
by him and asked them or told them “ at the pres­
ent time we are not equipped to serve colored peo­
ple”  and asked them if they would please leave. 
All left except, I believe him name is Jackson— the 
boy with the gray suit on. He refused to leave. 
He was sitting there with him hands up in the air 
talking— he wanted to be served. There was quite 
a commotion. I walked over and identified myself 
as a police officer and told him he was under ar­
rest and asked him if he would go with us and he 
did. We taken him out and there was quite a com­
motion there among the white people. I have their 
names: Sammy J. Baker, Melvin T. Jackson, Win­
ston Jones, McLloyd Buckannan, William Rogers, 
Jr., Eugene D. Smith. We took these six defend­
ants into custody. Officer Phillips went out when 
he saw the commotion he went out with Lt. Talbert 
and came in the door and met me at the lunch 
counter and taken them in custody and brought 
them to headquarters. I consulted another officer 
and secured a warrant from the Prosecuting At­
torney’s office. They were placed under charge of 
Act 226, 1959. The defendants said they were 
students of Philander Smith College. All lived at



38

Philander Smith, I think, except two. In addition 
to Act 226 of 1959,1 secured a warrant on Melvin 
T. Jackson on Act 14. It was about 11 :30 and the 
lunch counter was quite crowded. They had sev­
eral vacant seats. The lunch counter is more or less 
in a horse shoe shape there and a number of peo­
ple, mostly ladies, eating. I would say 25 of them 
got up and left the place and walked back to see 
what was going on. Some of them even left the 
store. A  lot of people gathered up, fifty  or sixty 
people gathered in to ask questions. Some were a 
little bit angry. We took the boys out as soon as 
possible without creating any trouble.

When I first saw the defendants, they were 
going in the store. That is what caused me to go 
into the store. We had some previous trouble and 
were observing them at that time. Had no prior 
arrangement or agreement with the manager o f 
Pfeifer’s to come into the store when I saw the 
Negro students come in the store. I observed these 
students when they sat down in the store. They 
were at the counter. Best I remember, the counter 
is arranged more or less like a horseshoe. In other 
words, comes out in a circle and dips back more or 
less “ S”  shaped. I do not know how many seats 
or stools are there. Students were all together 
when they came into the store. They split up after



39

they got in the store, walked by different places, 
walked by the counters different places and looked 
at things, didn’t ask questions whatever about buy­
ing anything. They had split up different inter­
vals. I am not too familiar with the store. They 
were on the lower floor. They scattered out. I 
can’t say what department. Am not too familiar. 
I would say they covered around forty feet, differ­
ent aisles, around the store. I watched them. They 
didn’t make any purchases while in there. They 
didn’t have anything when we arrested them. They 
weren’t in there long enough to buy anything. 
Melvin Jackson sat between two white ladies. He 
made it a point to sit there because he passed sev­
eral vacant seats which he could have set down on, 
maybe two or three. I don’t know that all the de­
fendants made a point to sit where they did sit. 
They were picking different places. They were 
walking around the counter and passed up some 
places where there was vacant seats in order to sit 
down by somebody. Some of the other defendants 
sat by someone. I ’m not trying to arouse racial 
prejudice by pointing out he made a point of sit­
ting between two white ladies. He is the one who 
refused to leave when Mr. Mitchell, manager of 
the lunch counter, asked him to leave. I heard the 
manager ask him to leave. He asked them in a



40

loud voice. He went to each one. I was walking 
behind him, probably three feet. Some of them 
were more or less together, maybe two or three to­
gether. Then he would ask them or tell them “ At 
this time we are not equipped to serve colored peo­
ple”  and asked them if they would please leave the 
store, and they got up without any trouble. As 
far as I know he got around to all of them. No 
other colored persons seated at the counter, as I 
know of. I am sure I would have seen them if they 
had been there. I didn’t hear defendants saying 
anything. When they sat down he walked over. 
I wasn’t talking to them myself. Mr. Mitchell was 
talking to them and asked them to leave. As far 
as what they said I did not hear them say any­
thing. They sat down at the lunch counter in my 
presence is why I made the arrest. Except Mel­
vin Jackson. As far as I could tell they weren’t 
carrying on any loud talk, I could hear no offen­
sive talk. I could not see that they appeared to be 
intimidating anyone other than their presence 
which caused quite a disturbance among the peo­
ple eating. I made the arrest solely on my own 
and not at the request of anyone. The defendants 
were sitting at the lunch counter, is why I made 
the arrest. That is all. All left when the manager 
told them to leave except Jackson. I arrested the



41

other defendants because they had taken seats at 
the lunch counter. According to the law, if a Ne­
gro sat down at a lunch counter, he was guilty of 
some crime. I would have arrested a white person 
if  he had sat down and caused a commotion. They 
caused a commotion because they sat down and 
about 26 different people pushed their plates back 
and got up and left the lunch counter and began 
talking. Only thing these defendants did in my 
presence was to go in there and sit down. To me 
they weren’t discourteous. They were to the peo­
ple who got up and left only by sitting there. They 
left immediately when requested to do so by the 
manager. Jackson did not. He was talking to 
himself “ I want to be served” “ I want to be serv­
ed” . You could hear him seven or eight feet away. 
I would say he remained there two or three min­
utes. It was the time I had talked to the others 
and asked them to come over there then I walked 
over and identified myself to Jackson and he got 
up and left when I asked him to. Mr. Mitchell was 
the first one to ask him to leave. Mr. Mitchell had 
on a white uniform, white shoes, white trousers. 
I coudn’t say he did or didn’t identify himself. I 
identified myself. The defendant left when I iden­
tified myself and asked him to leave. Mr. Mitchell 
had on a white uniform. He told them “ at the



42

present we are not equipped to serve colored peo­
ple, will you please leave.”  Numerous people got 
up and left. There was a reaction from other pa­
trons in the store and they came forward. They 
wanted to know what we were going to do, and I 
said “ just step back there.”

ERNEST M. PHILLIPS, Little Rock Police 
Department, witness for State, testified as follows: 
(Tr. 60-68)

Was working on the 13th of April, 1960. On 
that date, I had occasion to assist in investigating 
alleged offenses at Pfeifer’s main store at 6th & 
Main in Little Rpck. Around eleven thirty or just 
before, the man told me “you better go to Pfeifer’s, 
it looks like trouble— I went over to Pfeifer’s these 
boys were milling around in there. It wasn’t long 
until Lieutenant or Captain Terrell came in. They 
made the sit-down and I went over there to pre­
vent trouble and wrhen they set down Captain Ter­
rell said “go out and get— He is my commanding 
officer” . I went out and got Lieutenant Talbert 
and brought him in there and as I was coming in 
Captain Terrell had them marching out, took them 
out there on the sidewalk and then took them to 
headquarters. I saw two sit down but I don’t 
recognize but one of them today. This fellow Jack­



43

son. He seemed to be the head man in the bunch. 
He walked up to the counter and somebody got up. 
I didn’t see but two sit down. There were several 
about the lunch counter. I can’t identify any of 
the others I saw sit down. I didn’t hear them talk­
ing among themselves. When I went in frist they 
were just milling around. Captain Terrell sent me 
out for Talbert. I mean by ‘ ‘milling around” , walk­
ing around different places, looking at different 
places. Didn’t see them buy anything. When they 
first came in they kind of stopped and had a talk. 
Looked like four or five of them together when 
they first came in. No one in particular seemed 
to be doing the talking. They broke up and went 
in different directions. Took a seat at the counter 
just a few minutes later. The two I saw, one sit 
down like here and the other one here. They were 
a dozen seats apart. Jackson set down right at the 
horseshoe and the other one went to the end of the 
horseshoe. I wasn’t present when Captain Terrell 
talked to them or Mitchell. Saw the defendants 
when they went in the store. Saw two sit down. 
They were scattered about the counter there. They 
were not sitting down. I was there when they left. 
Helped take them away. Captain Terrell had them 
up bringing them out. I don’t know whether Cap­
tain Terrell said anything to them. I wasn’t in



44

there when he was talking to them. He told me to 
go get Lieutenant Talbert. I guess there were a 
hundred stools on the two counters— swivel chairs. 
All of them had backs. I ’m positive about that. 
Have been a police officer about 25 years. Have 
made numerous investigations as a police officer. 
Arrival o f police officers at scene of an investiga­
tion does not create a lot of curiosity and anxiety. 
For one thing officers are supposed to keep the 
peace. Most times a crowd gathers pretty much 
any place the police are making an investigation. 
I didn’t hear these boys carry on any loud talking. 
They didn’t say anything. I didn’t see them do 
anything I felt they should not have done other 
than sitting down at the counter. All I saw they 
just sat down at the counter. I was carrying out 
orders when I assisted in the arrest. If these had 
been white students sitting at the counter, and 
they had created a disturbance, I would have made 
the arrest. I saw two sitting at the counter. That 
is the only thing they did to create a disturbance. 
They violated the law, for a Negro to sit down at 
a white counter. All I saw was the Negroes sit­
ting down at the counter. I am 64. I don’t have 
a regular beat. I have worked on Main Street sev­
eral years. Have gone in and out of stores watch­
ing crowds in stores over a period of years. The



45

patrons or crowd at Pfeifer’s seemed to be excited 
when they were in there. They were expecting 
trouble.

LIEUTENANT H. J. TALBERT, Little Rock 
Police Department, witness for the State, testified 
as follows: (Tr. 70-75)

Was working on April 13, 1960, and assisted 
in the investigation of an alleged offense at 6th & 
Main at Pfeifer’s store. The officers with we were 
Phillips and Terrell. I pulled over to the curb at 
6th & Main and parked. Officer Terrell got out 
o f the car and went in the store and in a few min­
utes Officer Phillips came out of the store. After 
he came out, I got out of the car and went in the 
store at his command. I saw Officer Terrell in 
the store. When I walked in the front door and 
started down the aisle. I met Officer Terrell and 
six Negroes coming down the aisle. Five of them 
there are in the court room today. I now know the 
names of the defendants. I took the Negroes out 
the front door and stood there and called the patrol 
wagon. I sent them to Police headquarters. The 
patrons in the store were milling around crowding 
up and talking and asking questions. I had been 
in the store where the arrests were made before. 
The behavior of the crowd was out of the ordinary



46

that is why I took them out to the front to get them 
away from other people. I did not go in the store 
at first when Captain Terrell went in. Saw noth­
ing that went on until Captain Terrell sent for me. 
Don’t know anything about what happened in 
there only after I got there and met him. At the 
time I knew nothing at all. I was present in Mu­
nicipal Court when they had a previous trial. It 
was my testimony at that time that these people 
were just standing on tip toes to see what was go­
ing on. I observed the demeanor and attitude of 
the crowd. I asked the crowd to stand back so I 
could take the boys out of the store. I found that 
necessary. I testified I took the boys out in Mu­
nicipal Court. I testified I took the boys out and 
the crowd was on tip toes trying to see what was 
going on and I told them to get back. I don’t re­
member that I made a statement in Municipal 
Court I told them to get back.

W. T. MITCHELL, Manager of Pfeifer’s de­
partment store, Little Rock, Arkansas, witness for 
State, testified as follows: (Tr. 77-84)

I am Manager of P feifer’s Department store, 
a business place in Little Rock. It is open to busi­
ness and also was open to business on April 13, 
1960. On that date, I observed the police appearing



47

there. Something happened to attract my atten­
tion before the police got there. Well, there were 
a few boys —  these hoys here —  they came in, but 
they were not together. They were separated and 
I guess they were to meet one another. I don’t 
know. That is not for me to say. And they came 
in and they stood around the card counter and 
went back out, around the card counter. And they 
left and in the meantime, Officer Phillips came in, 
and I was talking to him and this Officer over here 
— Officer Terrell came in and I was talking to 
them and I went to use the phone, and while I was 
using the phone these fellows came in. I’m talking 
of the defendants. They sat down at various places 
■— at the lunch counter. I am in charge and the 
Manager. And as soon as I got o ff the phone they 
all had not sat down when I got o ff the phone. 
I went back, however, for my girls to close the 
counter down. At that time a man jerked two of 
these boys back before they got to sit down. I 
don’t know the man. I didn’t get the man’s name. 
He is not in the court. I don’t think I know his 
name. I had never seen the man before. They 
were not sitting. And I walked over to— well— one 
of these— one or two of these fellows. I don’t re­
member which ones. And I told them at that time 
we are not equipped to serve them, and would they



48

leave. Most of them, I think, got up. There was 
only one I see that sat there a little longer. I do 
not know his name. Actually, I couldn’t identify 
him this morning as to which one he was. The 
police were— and they were talking then— begin­
ning to take them out and things happened rather 
— a little fast and I was unaccustomed to it and I 
couldn’t tell you which ones they were. The best 
I can remember all of them left except one. The 
best I can remember all of them left except one, 
when I asked them to leave. This had occurred in 
my store before. When this happened it was at 
our lunch hour, our noon hour rush; we were quite 
busy and we do have a large crowd. Actually, I 
was too busy to say what was the reaction as to the 
attitude of the crowd. I didn’t point out the boy 
to the officers who wouldn’t get up. I didn’t re­
quest all of them to leave. I didn’t get around to 
all of them. I don’t know which one refused to 
leave. I couldn’t tell you one of these boys from 
the other who sat down there. They weren’t dis­
orderly in any manner. Were not loud. Were not 
boisterous. Were not discourteous. Did not threat­
en anybody. Didn’t try to intimidate me. Could 
stop my business. Actually, the problem is this, 
the fact that Negroes were at a white lunch count­
er. Otherwise their demeanor was all right, as far



49

as I know. My lunch hour is from eleven until 
one— until two. This happened around a quarter 
of twelve. I have a larger crowd from eleven until 
two o’clock than any other part of the day, ordi­
narily.

JAMES FRANK LUPPER and 
THOMAS B. ROBINSON 

vs. No. 4997
STATE OF ARKANSAS

CAPTAIN PAUL TERRELL, Little Rock Po­
lice Department, witness for the State, testified as 
follows: (Tr. 83-42)

On April 13, 1960, we, Lt. Talbert, myself, 
Officer Baer and Officer Thomas were at 4th & 
Main, in front of Worthen Bank. It’s about 12 
noon. Mr. Holt and Mr. Trianfonte came over 
and identified themselves as being the manager 
and assistant manager of Blass’ Department store 
said they had some colored boys. They asked us if  
we would assist them. We went over to Blass’ De­
partment store and when we got inside the store, 
just about 20 feet from the elevator, we observed 
two Negro boys that they pointed out to us and 
said they were the ones that had sat. It was in the 
presence and hearing of the defendants. They



50

pointed out there two boys, said they were the ones 
that— Thomas B. Robinson and Frank James Lup- 
per. I asked them, or they said they were the ones 
that had been in their lunch counter and sat down. 
I asked Robinson in the presence of all o f us, Lieu­
tenant Talbert, Mr. Trianfonte, Mr. Holt and my­
self, if  they were the ones that was at the lunch 
counter. Robinson spoke up and said he was. Also 
Lupper said he was also present and we arrested 
them, brought them both to headquarters. Actual­
ly their statement was made in the presence of 
Lieutenant Talbert and m self, Mr. Holt. The 
lunch counter there is upon the mezzanine floor, 
the second floor. This conversation in their pres­
ence was directly underneath the lunch counter. 
They stated to me that they had sat at the lunch 
counter. They stated to me that they had been 
asked to leave. They stated to me that they had re­
fused to leave. As to the demeanor of the patrons 
in the store at the time I was talking to them, as 
far as the lunch counter, I couldn’t say, but there 
were several white people that followed them and 
ganged up around us while we were talking to 
them. There as sereval people walked up there 
and asked what we were going to do, wanted to 
know what was going on, you know, and so forth. 
They asked several questions. I was in Municipal



51

Court when this case was tried. I ’m sure I testi­
fied to all of that I said here. I don’t remember 
just what I did testify there that they had ganged 
up, that anybody had to be restrained. Lieutenant 
Talbert was. with me. These boys were coming 
out of the store, but they were orderly. Had no 
reason to arrest them, except from the complaint 
of the manager. He requested us to arrest them. 
He had requested our assistance to get them out 
from the lunch counter when he came over to get 
us. He told us that he had two boys that had re­
fused to leave the lunch counter and asked that we 
assist them. I do not know that they did any of 
these things except their word. They said they had 
been up there and they had been asked to leave and 
refused to leave. I ’m sure Officer Talbert was 
standing near me. He was I think close enough to 
have heard it. I would think he could have heard 
what I heard. I couldn’t say whether he could hear 
exactly what I did. I was talking to them. May­
be he was talking to some of them. I couldn’t say 
just exactly what he heard and what he didn’t. I 
talked to both boys, asked both of them had they 
been at the lunch counter and they said they had. 
I asked each one individually. I asked them were 
they the ones at the lunch counter and had Mr. 
Holt asked them to leave. They said yes, that they



52

wanted to be served. They said they had been ask­
ed to leave. They told me they had been asked to 
leave. The time was twelve noon. There was a 
large crowd in the store. I believe there was some­
thing, I forget what it was, but anyway there was 
a large crowd down town that day. I didn’t say 
the defendants were leaving the store when I met 
them, but they were leaving towards the elevator. 
They were about halfway from here to you or may­
be a little further from the elevator, but the ele­
vator is in the center of the store. There was a 
large crowd in there. They were coming from the 
elevator which would have been going south from 
the elevator. I couldn’t say going toward the south 
entrance. There is an aisleway there. I couldn’t 
say that they were going out of the store. There 
were several aisles there. They could have been 
going any direction.

H. J. TALBERT, Little Rock, Police Depart­
ment, witness for the State, testified as follows: 
(Tr. 43-49)

I assisted in the investigation at Blass’ De­
partment store in Little Rock on April 13th. Two 
men come running across the street on the corner 
in front of the Worthen Bank. They told us they 
were managers of the department store. We went



53

in the store, Captain Terrell and I. I observed two 
Negroes coming down the aisle in the store, was 
pointed out to me. The two men who complained 
were with me at that time. These two boys on my 
right, the two defendants pointed out to me are in 
the court room today. I don’t recall their names. 
We had had 12 or 15 that day. It was on the 
ground floor. Captain Terrell and I both talked 
to them. I asked the big boy there if  he had been 
sitting at the lunch counter and he said he did. I 
asked him if he was asked to leave. He said that 
he was. He said he refused to leave. I did not 
question the other one as to whether he had re­
fused to leave. It was between 11:45 and 12:00 
o’clock. I would say, there was over a normal 
crowd, a large crowd of people. I didn’t notice the 
demeanor of the patrons of the store at that time. 
I was present in Municipal Court. Captain Ter­
rell talked to the boys and asked them if they were 
at the lunch counter. They said they were. He 
asked them if they refused to leave. One of them 
said he did. The other one denied it to me. This 
one here said he refused to leave. I believe this is 
the one, this is Robinson. This big boy Lupper 
reared up and pointed his finger at Mr. Holt and 
said he did not refuse to leave. We put them un­
der arrest and took them out of the store. That



54

was my testimony in Municipal Court, I think. I 
don’t remember. I testified to what I had done. 
I did not testify that both of these boys told me 
that. That is not my testimony this morning. One 
of them, Robinson said he refused. That one of 
them is the one I talked to. We was altogether, 
the two men, the two Negroes and Captain Terrell 
was all standing in one bunch, and I could hear 
what was going on and what was said. This big 
boy is the one that said he refused to leave. We 
was all standing there together, the two store 
managers. As far as I knew and from what I ob­
served these boys had done nothing for me to ar­
rest them, only on what the men said. Just what 
the manager said. They was coming down the aisle 
when we stopped them. They weren’t bothering 
anybody or weren’t molesting anybody. Weren’t 
loud and boisterous. Their conduct wasn’t threat­
ening to disturb the peace in any manner when we 
stopped them. The big fat man on this end told 
me he sat at the lunch counter and refused to leave.

A. F. BAER, Little Rock Police Department, 
witness for the State, testified as follows; (Tr. 
49-57)

I had occasion on April 13, 1960 with other 
officers to make an investigation of an alleged of­



55

fense at Blass’ Department Store in Little Rock. 
I was with Lieutenant Talbert and Captain Ter­
rell. I was working that beat at the particular 
time. I observed that there was a group of Ne­
groes that proceeded in the store that some went 
in the front door and some went in the 4th Street 
side and I knew that they were these sit-downers 
they have been called because most of them had 
their badges on and I followed them in and ob­
served them sitting down upstairs. Robinson was 
in the group of Negroes. I had seen him once or 
twice before. I had come to recognize him, on ac­
count o f his glasses and his build. He is the heavy 
set on the right. I proceeded down and called head­
quarters and advised them. They sent the Lieu­
tenant and the Captain down there, talked to Mr. 
Trianfonte of the Blass store. He advised us of 
the situation there. We went into the store, walk­
ed up to Lupper and Robinson. They admitted to 
us that they had been upstairs and sat down and 
that they were the two that had refused to leave. 
When I observed these two defendants, I was up­
stairs, in the eating place, the lunch counter, what­
ever it is called. I would say between 12, 15, may­
be more were sitting there or sat down there. I 
am not sure. I wasn’t present when any person 
working for the store approached and conversed



56

with them. When I came back outside from using 
the phone and the wagon had driven up and sever­
al police cars, they were beginning to come out. I 
didn’t talk to any of them while they were sitting 
at the lunch counter. I talked to the store em­
ployee. I don’t know his name and he advised he 
was waiting for the manager at the time. I didn’t 
talk to the defendants other than advised them 
they were under arrest after the Lieutenant and 
Captain was talking. We were all three together 
there at the same time. I wasn’t there when they*- 
requested them to leave. They advised us. I was 
present when the Lieutenant and the Captain had 
any conversation with them. I was present when 
the other officers questioned them. They both ad­
mitted that they had been up to the lunch counter 
and they were asked then if they had refused to 
leave and they both said that they had. When 
Captain Terrell and Lieutenant Talbert first made 
contact with the defendants, I was standing— we 
were all five right to— well, there was six of us 
counting the employees standing there, plus there’s 
quite a crowd of people there. We were altogether. 
Judge, maybe 25-foot from the elevator, maybe a 
little farther than that. It was kind of in the 
middle of the main floor. This was on the first 
floor. As near as I can recall, I believe the defend­



57

ants were just standing there when we walked up 
to them. They were just standing at the— there 
was some going and coming. These two happened 
to be just standing there, I believe. As near as I 
can recall I believe they were. I am not positive 
though. They could have been moving toward the 
door. I am not sure. I ’m positive that both of 
these defendants admitted that they had refused 
to leave. They asked each one as near as I recall. 
I was there in the presence of Captain Terrell and 
Officer Talbert. I heard everything that was said 
to the defendants. I was standing right there at 
their elbow. I cannot explain the inconsistency of 
the statement of one of the witnesses who preceded 
me in stating that one of these defendants denied 
that he refused to leave. I am positive about my 
testimony. Both defendants stated they refused 
to leave.

JOSEPH TRIANFONTE, Assistant Store 
Superintendent, Blass Company, witness for the 
State, testified as follows: (Tr. 57-63)

I am Assistant Store Superintendent at the 
Blass Company, I have been there approximately 
about four and half years, in a supervisory capac­
ity. The lunch counter is under the supervision of 
the Store Superintendent or his assistant when the



58

Store Superintendent is not there. I have some 
supervisory power over the lunch counter myself, 
also the Store Superintendent, and we have a 
luncheon Manager. Mr. Holt has complete author­
ity there. I was in the store on April 18, 1960. 1 
was sitting in my office, and I received a call that 
we had guests up in the dining room. My office is 
in the basement. The lunch counter is on the mez­
zanine, the main part of the store, the floor above 
the first floor. I went up there. I observed a 
group of these boys, students sitting at the lunch 
counter, also at scattered tables in the forepart o f 
the lunch room. They weren’t wearing any sort 
of sign on themselves, they were very neatly dress­
ed. I would say approximately six or seven were 
sitting at the lunch counter, I didn’t count them. 
It isn’t any of these boys here. Well, I suggested 
that we are not prepared to serve you at this time 
and will you kindly excuse yourself and he did not 
leave. He insisted that every Blass customer must 
be satisfied. That is our slogan and we try to live 
up to it. I couldn’t say whether this conversation 
was with this other boy in the presence of the two 
defendants. This boy came in late, the big boy 
here. I don’t know this boy’s name here, the small­
er of the two. I don’t recall him, but the other 
fellow here, I recall when he came in. I did not



59

speak to either of these two boys. I did not see 
either or both of these two defendants in the store. 
I saw this fellow here on the outside. The larger 
boy. He just came up to the counter and sat down 
and went into conversation with the other group 
of boys. I didn’t discuss anything with him my­
self. No one came in and assisted me. Mr. Holt 
was speaking to one group of boys. I got up from 
one counter to the table and requested the boys to 
leave. I can’t say I requested this defendant whom 
I recognized to leave. I didn’t talk to him. I don’t 
know why he came in late. After speaking to the 
boys individually, and again I requested them to 
leave, they refused, so we just turned around and 
went out and spoke to Mr. Holt. I went out and 
just went on the corner and I went over there and 
notified the police that I had guests that would 
not leave. The police came with me, they preceded 
me. I didn’t observe anything else after I got back 
in the store with the police. I went in at the Main 
street door. The police went in the Fourth Street 
door and I noticed that they stopped some boys and 
I didn’t know who they were.

HENRY L. HOLT, Store Manager, Gus Blass 
Store, Little Rock, witness for the State, testified 
as follows: (Tr. 63-73)



60

I am Store Manager and was on April 13, 
1960. I was in the store at that time. It is my 
understanding that the Blass Department Store is 
a private corporation. Something happened to at­
tract my attention and I went and asked for assist­
ance from the police. I have supervisory and man­
ager’s powers of the store —  includes the lunch 
counter. I went to the balcony lunch room during 
the lunch hour and observed there were five Ne­
gro boys sitting in the lunch room. Three of them 
at the counter and two of them at tables. I told 
each one of them in turn that I didn’t want any 
disturbance, but I did ask them to leave. They 
didn’t want to leave, refused to leave and wanted 
to argue with me about whether they should leave 
and I refused to argue with them and just told 
them. Of the five I observed, I see these two de­
fendants in the court room today. Then after ask­
ing them to leave and their refusing to leave, I 
left the store to look for assistance and having 
them removed. I went across the street, in front 
o f the Worthen Bank and found a police officer 
and told him that I had asked these people to leave 
and they had refused to do so and he came back 
with me and found them still there. These two 
defendants were in the store when I came back. I 
observed Captain Terrell and Lieutenant Talbert



61

talking to them. He accompanied me back, as a 
matter of fact. I identified them. I did ask these 
two defendants whom I recognize as being two of 
five to leave and they refused to do it. I was gone 
about two or three minutes, I guess, perhaps five, 
when I left to go get the officers until I came back. 
It was in the lunch period. I would say somewhere 
between 11:30 and 12:00 roughly. I am not sure 
of the exact time it was. My busiest hour or time 
of day in that store is from eleven to two. There 
were a number of people in the tea room when I 
arrived there who were all o f them apparently 
very interested, perhaps concerned with what was 
going on and what would happen. During the time 
that I was there talking to them and asked them 
to leave no one came in the tea room. Normally I 
would have expected a good many people. That is 
my busiest time. These boys were quiet. They 
weren’t boisterous at all— not disrespectful. I ’m 
sure I talked with these two defendants here. It 
might have been Mr. Trianfonte who called me. 
I got the phone call. I don’t recall who it was that 
phoned. The phone call informed me that the boys 
were sitting in the restaurant. I saw five boys 
sitting there when I was there. They were sitting 
there when I came into the room. I didn’t see an­
other one enter the room. I wasn’t in a position



62

where I could have observed it. They were on my 
right when I went down the row taking each one 
in turn and asked him to leave and after I had 
finished the conversation with each of the boys 
that were at the counter I turned and there were 
several boys at the tables and I talked to them. 
Now, I can’t say what was going on behind my 
back. I can’t say whether or not Robinson came 
in afterward. I don’t know the boys by name. I 
can’t say whether I saw him come in the tea room, 
no, but I did see him in the store. I saw him in 
the store when I came back with the police officers. 
The two defendants were on the main floor in the 
store when I came back. The main floor is a few 
feet from the stairs, at the bottom of the tea room. 
The elevator is just about eight feet from the bot­
tom of the stairs. When I saw these boys they 
were facing out and facing toward the street—  
possibly on their way out of the store. I don’t 
know what Mr. Trianfonte’s conversation was 
with any of them, if  he had one. I was going about 
my business and he was talking to others while I 
was talking to some and I made the circuit of 
everyone there myself and I believe he had been 
talking to some, if  not all of them. I did ask each 
of them to leave, including these two defendants. 
I ’m sure I talked to everyone of the defendants,



63

everyone of the colored boys in the store. I talked 
to these two in the store. I asked them to leave 
and they said, “ We don’t feel we ought to. Why 
should we?”  The questions varied and the answers 
varied from one to another, something like that. 
I identified myself as the manager of the store in 
each case. There were five colored men there. 
Five are all I talked to and all I saw when I came 
in and I talked to each of them. I don’t recall that 
there were 12 or 15 in the tea room because I talk­
ed to each one that was in the tea room There 
could have been some others in the other part of 
the store. I was concerned only with those in the 
tea room because those are the ones I talked to. 
These two were there. It took something like three 
minutes to go down and get the officers.

FRANK JAMES LUPPER, one of the de­
fendants, testified in his own behalf, as follows: 
(Tr. 77-87)

I live at 1817 Bishop, Little Rock. I am nine­
teen years old. I was in the Gus Blass store on 
April 13, 1960. I am a customer of Gus Blass. 
Have been for some time. My mother has an ac­
count there, and we have been having an account 
there for about 19 or 20 years. My people have 
been customers of Gus Blass practically before I



64

was born. On the morning of April 13, 1960, I 
entered Blass’ Department Store about 11:35 and 
on my way up to the lunch room, I sat down at the 
table to be served and while I was there waiting 
a man came to me. I believe it was the manager, 
for he said so. He asked me did I see the sign up 
on the wall, and I told him no, and he pointed to 
the wall and showed me a sign that I couldn’t read 
at the distance I was at the time. I couldn’t make 
out what it was and he said, he told me what was 
on the sign. He said that they had the right to 
choose who they would like to serve and he said do 
I understand. I told him that I was a customer of 
Gus Blass. He said he couldn’t help that. He said 
do I understand what he had just said . I sat there 
and he went to the next person. He did not ask 
me to leave. I did not refuse the request of any­
one to leave. After I sat there for sometime and 
I didn’t get waited on, I decided to leave on my 
own and I walked down the stairs and went on out, 
turned to my right and as I was going outside, I 
stopped at a counter to look at a pair of sunshades 
and just then a couple of officers walked in and 
asked the manager, “ Is this the one?”  And then 
he said, “ I don’t know,”  and he said, “ Well, all you 
have to say is yes or no,”  and he said, “ Yes,”  and 
then he said, “ You are under arrest,”  and I said,



65

“ What charge,”  and he said, “ Open charge,”  and 
then he took us down. The officer didn’t ask had I 
refused to leave the store, or the alleged tea room. 
No officer asked me that at any time. The mana­
ger of the store didn’t ask me, nor any person who 
was a representative of the Blass store asked me 
to leave. I saw Thomas Robinson coming out of 
the store while I was there. He was at the top of 
the stairs when I saw him. He was coming to­
wards me, and as I was leaving out, then every­
body else was leaving out, and then he turned 
around and followed me out. I didn’t make any 
noises of any sort while I was there. I wasn’t 
loud or boisterous. I didn’t threaten anybody there 
at any time. I didn’t molest anybody. No one 
threatened me. I wasn’t molested by anyone. I 
didn’t sit down at the lunch counter. I sat at the 
table. I don’t know the fellow’s name that sat 
with me, but there was another person. It wasn’t 
someone with me. It was someone from the store. 
There were two boys at the table, the other fellow 
and me. I have seen him before. I don’t know his 
name. I saw him around Philander Smith College. 
He went to school at Philander Smith College. He 
was sitting there when I sat down. I don’t know 
how long he had been there. I sat down there first 
and then he sat down there. I do not belong to the



66

NAACP. I don’t know whether my parents be­
long to them, I don’t believe so. Nobody told me 
to do this. I went down there alone. I knew what 
I was going to do when I got down there. I went 
down there to sit down at the table to be served. I 
hadn’t done that before. I hadn’t done it at any 
other store. I did it this day because I am a cus­
tomer of Blass Department Store. It could have 
been any other day. It just happened that is the 
day I decided to go down. I didn’t pick April 13th. 
I didn’t know anybody else was going to sit down 
and ask for service. I had not been instructed what 
to do if  they asked me to leave. Nobody en­
couraged me to do this. I don’t know how many 
were in the store. There was quite a few. There 
was about six. I didn’t say I didn’t have a crowd. 
I came in the store by myself. I didn’t know a 
crowd was going to sit down there. He didn’t ask 
me to leave. I heard all these witnesses testify. 
Captain Paul Terrell and Lieutenant Talbert talk­
ed with me. They asked me did I sit down. I 
said yes. They didn’t ask me if I refused to leave. 
Mr. Holt didn’t ask me to leave. I saw the de­
fendant Robinson there. He wasn’t sitting with 
me. I didn’t see him sitting. I saw him at the 
top of the stairs as I was going out. He followed 
me out. I have known him about five years, I



67

imagine. I didn’t know that he was going to be 
there that day. He didn’t know I was going to be 
there that day. I don’t know the names of some of 
the other boys there. I go to Philander Smith Col­
lege. Some of them just come around the school. 
I had no meeting about going in there, several of 
us, and sitting down. Not any time before that. 
You know, the states, I haven’t seen it, but I have 
heard about them. I have been reading about them 
in the paper. I decided since I am a Blass cus­
tomer, and I buy a lot of things, I decided to go in 
and see if we could get served. I am a customer 
of Pfeifer’s and Cohn’s, and Blass, a few others 
and I just go in every once in a while, not all of 
the time. I heard about another sit-down demon­
stration happened at Pfeifer’s that day. I saw it 
happen. I didn’t know it was going to happen. I 
drove to town in my car. I parked it, I believe 
on Columbus Street. I say a block away, I imagine. 
I got there at eleven thirty-five. I remember it 
because I saw it on the clock as I walked in the 
place.

THOMAS B. ROBINSON, one of the defend­
ants, testified in his own behalf, as follows: (Tr. 
88-99).

I was present at the Gus Blass Store on April



68

13, 1960. I guess it was between eleven forty-five 
and twelve o’clock. I ’m not sure. It was approxi­
mately that time. I entered Gus Blass store and 
as I was going upstairs to the mezzanine to get 
served I noticed several people leave out of the 
store and I didn’t know what reason they was leav­
ing and so as I walked in I left when I saw the 
other people leave and as I was about to leave out 
of the store this officer stopped me and he asked 
me was I upstairs and I said yes and he arrested 
us and we asked him what was the charge and he 
said, “ Open charge.”  He didn’t ask me if  I re­
fused to leave. The only thing he asked us was I 
upstairs. The only time I saw Mr. Holt was when 
I was leaving the store, leaving with the officers 
that arrested us. I didn’t sit down at the table at 
Gus Blass, so Mr. Holt couldn’t have talked. I 
didn’t have any conversation of any kind. I at­
tended school at Philander Smith College. This 
will be my third year. I arrived at the store alone. 
I wasn’t going to meet no one personally. I wasn’t 
expecting to meet no one. I only got in the store 
at the top of the stairs, and turned and came out. 
As I was leaving out of the store I was stopped by 
the officers and placed under arrest. I did not 
talk to anybody while I was there. I wasn’t loud 
or boisterous. I did not molest anybody. I didn’t



69

have any occasion to say anything to anybody. I 
did not have any conversation with any of the per­
sonnel in Gus Blass store. I am a customer of Gus 
Blass. I have bought clothes at Gus Blass. I will 
say about ten years or more. I have been going 
there since I cam remember, since I was a child. 
I have always been served there. I am twenty. I 
have lived in Little Rock twenty years. I used to 
belong to the NAACP Junior Council when I was 
in high school. I don’t think they have a Junior 
Council now. I am not a member of any group out 
at the school who has met and worked us a scheme 
to go in the stores and sit down. I did go in Blass’ 
Store, on April 13th. I went in my car. I think 
I parked it down on Scott, about 3rd and Scott. It 
was close to twelve o’clock when I got there about 
lunch time. No one was with me. I don’t think I 
was late for lunch. I went to Blass’ store because 
I was looking for a suit. I didn’t get a chance to 
sit down at the table or lunch counter. I don’t 
know why they arrested me. Lupper and I were 
together when we got arrested. As he was coming 
out, I guess we were coming out of the store at the 
same time. I was leaving the store because I was 
ready to go. After I got upstairs and saw that it 
was impossible for me to get served. I decided to 
leave out. I didn’t go there solely to be served food.



70

I got hungry as I was there and I went upstairs to 
get served. I didn’t ask to buy a suit while I was 
there. They sell suits on the main floor. The lunch 
counter is on the mezzanine. They don’t sell suits 
up there. I went to the lunch counter to eat. I 
don’t know where Lupper was when I got up there. 
Lupper and I accidentally, I guess it was accident­
ally were coming out of the store. We were leav­
ing the same entrance. I didn’t come down the 
stairs with him. I walked down the stairs. Lup­
per didn’t walk with me. He walked by himself. 
I walked, I think I was behind him. I am almost 
positive. I remember seeing him as we were going 
out of the store. We were together when the of­
ficers stopped us. He was looking at some shades. 
I didn’t stop to talk to him. We were going out 
the same entrance and the police stopped us to­
gether. I went there to buy a suit, but I got hun­
gry while I was there. I was going up towards 
where they served the food. I got as far as the 
entrance, the head of the steps. There were a lot 
of people sitting around at the tables when I got 
up there. There was same colored boys up there. 
They were sitting down at the tables and some at 
the counter. After when I came up there, they 
were leaving. There were some of them leaving 
and some o f them sitting down and then all of



71

them leaving as I was coming in. I don’t know 
why they left. I didn’t see Lupper up there. I 
don’t remember seeing Lupper until I wTas on the 
main floor. I got as close to the lunch counter as 
to the top of the stairs. I left because I saw a lot 
of other people leave. It was obvious that I couldn’t 
get served because I saw the other people leave 
out. I presumed they left because they couldn’t be 
served. I really don’t know why they couldn’t be 
served. I guess because they are colored, I don’t 
know why these officers would tell a story on me. 
I can’t say that I saw any other colored people sit­
ting around there or in the store about my size and 
wearing glasses. I have never had any trouble with 
Mr. Holt or anybody in the store there. I never 
have seen him before we got arrested. I don’t know 
why he would sit there and say that he saw me sit­
ting there and asked me to leave. He might have 
made a mistake. There’s a lot of people in the 
store that might have been my size and my age. 
The officers asked me was I upstairs and I said 
yes. He didn’t ask me if I refused to leave. Mr. 
Holt didn’t ask me to leave. He didn’t tell me that 
he wasn’t prepared to serve me at that time. I 
didn’t ask any questions why he wasn’t. I had not 
discussed this with anybody about being there on



72

that day, nor at the time I would get there, or what 
I would do when I got there.

ARGUMENT

I
ACTS 226 AND 14 ARE UNCONSTITU­

TIONAL IN THAT THEY DENY THE 
DEFENDANTS DUE PROCESS AND 
EQUAL PROTECTION OF THE LAWS

The BRIGGS case and the SMITH case in­
volve only Act 226 of the Acts of 1959, the perti­
nent part of which is now Arkansas Statute 41- 
1432, and reads as follows:

41-1432. CREATING DISTURBANCE IN 
PUBLIC PLACE OF BUSINESS 
OR OTHER PUBLIC PLACE —  
PENALTY.—

Any person who shall enter any public place 
of business of any kind whatsoever, or upon 
the premises of such public place of business, 
or any other public place whatsoever, in the 
State of Arkansas, and while therein or there­
on shall create a disturbance, or a breach of 
the peace, in any way whatsoever, including, 
but not restricted to, loud and offensive talk, 
the making of threats or attempting to in­
timidate or any other conduct which causes a 
disturbance or breach of the peace or threat­
ened breach of the peace, shall be guilty of a



73

misdemeanor, and upon conviction thereof 
shall be fined not more than five hundred dol­
lars ($500.00) or imprisoned in jail not more 
than six (6) months, or both such fine and im­
prisonment. (Acts 1959, No. 226, § 1, p. 
1159.)

The LUPPER case involves the alleged viola­
tions of Acts 226 and also Act 14 of the Acts of 
1959. The pertinent section of Act 14 is now Ar­
kansas Statute 41-1433, and reads as follows:

41-1433. REFUSAL TO LEAVE BUSI­
NESS ESTABLISHMENT AF­
TER REQUEST —  PENALTY.—

Any person who after having entered the 
business premises of any person, firm, or cor­
poration, other than a common carrier, and 
who shall refuse to depart therefrom upon re­
quest of the owner or manager of such busi­
ness establishment shall be deemed guilty of 
a misdemeanor and upon conviction shall be 
fined not less than fifty dollars ($50.00) nor 
more than five hundred dollars ($500.00) or 
by imprisonment not to exceed thirty (30) 
days, or both such fine and imprisonment. 
(Acts 1959, No. 14, §1, p. 29.)

These statutes are so vague, uncertain and in­
definite that they afford no fair warning to the 
appellants as to what conduct might transgress the 
statute, and they provide no ascertainable stand­
ard of criminality. Act 226 does not require that



74

the actions of an alleged offender be “ willfully or 
maliciously”  done as required by a disturbing the 
public peace statute which has been on our books 
for over a half-century (Ark. Statute 41-1401). 
There is absolutely nothing in this Act which 
would give fair warning to a person that they 
would violate the statute by peacefully occupying 
a seat at a public lunch counter and seeking serv­
ice, where such service was being accorded to the 
public.

Act 14 is even more vague as the only thing 
which is required under the statute to make one 
guilty of a criminal offense is the mere refusal of 
a person to leave a business establishment after 
having been requested to do so by the owner or 
manager of such business establishment. The Act 
does not require or even imply that there must be 
any mens re a on the part of the alleged offender 
before there could be a violation of the statute, nor 
does it require that the alleged offender be doing 
or threatening to do any unlawful act as a condi­
tion upon which the owner or manager bases his 
request to leave. Act 14 could easily be construed 
to require the conviction of a customer who, after 
having paid cash money for an article in a store 
which the owner had not yet delivered to him, re­
fused to leave the store upon request of the owner



75

until the purchased article was delivered or his 
money refunded.

These are penal statutes and the great weight 
of authorities require that a penal statute he suf­
ficiently definite and understandable as to fore­
warn men of ordinary intelligence as to what con­
duct is prohibited. See UNITED STATES V. 
MILLER, 17 F. Supp. 65 (W. D. Ky. 1936); LAN- 
ZETTA V. NEW JERSEY, 306 U. S. 451 (1939). 
It is the legislative, rather than courts or juries, 
which must fix the standard of conduct and it 
must be done in such a way that an ascertainable 
standard of guilt can be reasonably determined by 
persons of common intelligence. These Acts are 
so vague that a conviction under them would de­
prive the appellants of the due process and equal 
protection of law required by Amendment Four­
teen to the Constitution of the United States and 
also Article II, Section 8, of the Constitution of 
Arkansas. The Motions to Dismiss for unconsti­
tutionality should have been granted.



76

II

THE ACTS HAVE BEEN APPLIED IN 
AN UNCONSTITUTIONAL MANNER

Defendants submit on several grounds that 
the police officers had no legal right to demand 
that they leave their seats as was done in the 
BRIGGS case, and that consequently the officers 
had no right to arrest them for declining to obey 
an order that the police had no authority to make. 
I f Act No. 226 of 1959, under which defendants 
were convicted, is construed and applied by this 
Court to authorize the actions o f the police and to 
support criminal convictions of the defendants, the 
statute will deprive the defendants of rights pro­
tected by the due process and equal protection 
clauses of the Fourteenth Amendment to the Con­
stitution of the United States.

A. The police action in ordering that the de­
fendants leave the store, where no such request 
had been made by the owner or manager, and in 
arresting them was an unconstitutional interfer­
ence with the defendants’ rights to emply peaceful 
persuasion and advocacy to attempt to obtain an 
end to a claimed injustice. It is clear that the due 
process clause of the Fourteenth Amendment pro­
tects the citizen against interference by the state



77

and its officials with peaceful speech, assembly 
and advocacy of political, religious or social views, 
no matter how unpopular the ideas presented may 
be in the community, except in rare cases where 
advocacy causes a clear and present danger to the 
public. There is no doubt that advocacy of an end 
to racial discrimination is within the area of pro­
tected speech. Cf. SCULL v. VIRGINIA, 359 U. S. 
344 (1959); NAACP v. ALABAMA, 357 U. S. 
449, 460-466 (1958).

The defendants sought to be served at public 
lunch counters in the belief that by so presenting 
themselves for service they might persuade the 
proprietors to end the discriminatory treatment of 
Negro customers. There were no acts by the de­
fendants upon which the law officers, or the court 
below, could properly make a determination that 
the defendants’ advocacy created a danger to the 
public that was so clear and present as to justify 
suppression by the government. The officers’ tes­
timony as to their subjective feeling that there was 
“ tension”  among the customers in the store is 
plainly insufficient by itself. There were no acts 
of violence committed by or against the defend­
ants ; there was no advocacy of violence; there was 
no destruction of property. Indeed there was not 
even a request for police assistance from the man­



78

ager in charge o f the store or the owner in the 
BRIGGS case or the SMITH case, and the students 
were leaving Blass’ Department Store when they 
were arrested in the LUPPER case.

This Court should make it plain that free 
speech cannot endure unless police officers protect 
the right to speech and advocacy of persons whose 
ideas they deplore as well as persons with whom 
they agree, and that the paramount obligation of 
the police in these cases was to exercise precau­
tions to protect the defendants against any appre­
hended violence rather than to suppress their ad­
vocacy in order to end the “ tension”  in the store.

Numerous decisions support the proposition 
that peaceful advocacy such as the defendants were 
engaged in when they were arrested is protected 
against infringement by law enforcement officers 
and the imposition of criminal sanctions. THORN­
HILL v. ALABAMA, 310 U. S. 88 (1940); KUNZ 
v. NEW YORK, 340 U. S. 290 (1951); CANT­
WELL v. CONNECTICUT, 310 U. S. 296 (1940); 
HERNDON v. LOWRY, 301 U. S. 242 (1937); 
N1EMOTKO v. MARYLAND, 340 U. S. 268 
(1951); TERMINIELLO v. CHICAGO, 337 U. S. 
1 (1949); DEJONGE v. OREGON, 299 U. S. 353 
(1937); MARSH v. ALABAMA, 326 U. S. 501 
(1946).



79

It is plain that these defendants merely sat 
peacefully at the lunch counter, and that they com­
mitted no violence, provoking no violence, used no 
offensive language, made no threats, and engaged 
in no intimidation. The only thing that the de­
fendants did was to fail to heed the police demand 
that they give up their seats and leave, in the 
BRIGGS case. In the SMITH case the defendants 
left the store when requested to do so by the man­
ager and were arrested by police officers who act­
ed without any request by the manager or owner 
of the store.

The defendants did not breach the peace, or 
threaten to do so. Nothing in the statute under 
which they are charged gives the defendants fair 
warning that they would violate the statute by 
peacefully occupying seats at a public lunch count­
er seeking the end of a policy of racial discrimina­
tion and failing to obey a police demand that they 
move, which was unaccompanied by any request to 
leave from the person owning or in possession of 
the store, unaccompanied by any indication of the 
policemen’s authority to make such a demand; un­
accompanied by any actual authority in the police 
to make such a demand, and unaccompanied by 
any actual breach of the peace. Particularly where 
fundamental constitutional rights are at stake and



80

where the vagueness of a criminal law may inhibit 
the advocacy of ideas, vague laws applied so as to 
suppress free speech must be struck down as de­
nials of due process. HERNDON v. LOWRY, 
supra; LANZETTA v. NEW JERSEY, 306 U. S. 
451 (1939); RALEY v. OHIO, 360 U. S. 423 
(1959); SCULL v. VIRGINIA, supra; WINTERS 
v. NEW YORK, 333 U. S. 507 (1948); UNITED 
STATES v. CARROLL, 345 U. S. 457 (1953); 
UNITED STATES v. COHEN GROCERY CO., 
255 U. S. 81 (1921); CONN ALLY v. GENERAL 
CONSTR. CO., 269 U. S. 385 (1926).

A  single discriminatory act, supported by 
other evidence of intention and purpose to dis­
criminate because of race, may well establish a 
pattern that must be condemned as illegal.

The Supreme Court, in Snowden v. Hughes, 
321 U. S. 1, 8-9, 64 S. Ct. 397, 88 L. E. D. 497, in 
construing a statute, fair on its face, made the fol­
lowing pronouncement:

“ The unlawful administration by state of­
ficers of a state statute fair on its face, re­
sulting in its unequal application to those who 
are entitled to be treated alike, is not a de­
nial of equal protection unless there is shown 
to be present in it an element o f intentional 
or purposeful discrimination. This may ap­
pear on the face of the action taken with re­



81

spect to a particular class or person cf. Mc­
Farland v. Sugar Co., 241 U. S. 79, 86-7, or it 
may only be shown by extrinsic evidence show­
ing a discriminatory design to favor one in­
dividual class over another not to be inferred 
from the action itself, Yick Wo v. Hopkins, 
118 U. S. 356, 373-4. But a discriminatory 
purpose is not presumed, Terrance v. Florida, 
188 U. S. 519, 520; there must be a showing 
of ‘clear and intentional discrimination/ 
Gundling v. Chicago, 177 U. S. 183, 186; see 
Ah Sin v. Wittman, 198 U. S. 500, 507-8; 
Bailey v. Alabama, 219 U. S. 219, 231. Thus 
the denial of equal protection by the exclusion 
of negroes from a jury may be shown by ex­
trinsic evidence of a purposeful discrimina­
tory administration of a statute fair on its 
face. Neal v. Delaware, 103 U. S. 370, 394, 
397; Norris v. Alabama, 294 U. S. 587, 589; 
Pierre v. Louisiana, 306 U. S. 354, 357; Smith 
v. Texas, 311 U. S. 128,130-31; Hillv. Texas, 
316 U. S. 400, 404.”

In Smith v. People of California, 80 S. Ct., 
215, the Court held:

That where the definition included no ele­
ment of scienter —  knowledge by appellant of 
the contents of the book —  and thus the ordi­
nance was construed as imposing a “ strict”  or 
“ absolute”  criminal liability. The appellant 
made timely objection below that if the ordi­
nance were so construed it would be in con­
flict with the Constitution of the United 
States.



82

California here imposed a strict or absolute 
criminal responsibility on appellant not to 
have obscene books in his shop. “ The exist­
ence o f a mens tea is the rule of, rather than 
the exception to, the principles of Anglo- 
American criminal jurisprudence.”  Dennis 
v. United States, 341 U. S. 494, 500, 71 S. Ct. 
857, 862, 95 L. Ed. 1137.

Even assuming arqnendo that a threat of a 
breach of the peace was created by someone among 
the crowd of customers who gathered in the stores 
to watch the defendants and the police, the defend­
ants may not be held criminally responsible for the 
acts of these other persons, as there is no evidence 
that the defendants were made aware of the in­
tention of any persons to attack them, or even that 
there was any likelihood of such an occurrence. 
To punish the defendants on the basis of the police 
officer’s subjective impression that someone might 
cause violence because there was “ tension”  would 
be to apply Act No. 226 so as to make an arbitary 
classification of innocent unknowing acts as crimi­
nal offenses. Such a construction of the statute 
to allow punishment without evidence of criminal 
scienter would be a deprivation of due process in 
violation of the Fourteenth Amendment. Wterrain 
v. Updegraf, 344 U. S. 183 (1952); Smith v. Cali­
fornia, 361 U. S. 147 (1959).



83

B. The action of the police officers in de­
manding that the defendants leave the lunch count­
er was plainly based upon the policy of the store, 
reflecting the custom in the community, that Ne­
gro customers are not served at lunch counters 
maintained for white persons. The action of the 
police in demanding that the defendants leave the 
lunch counter and in arresting them for their re­
fusal, and the action of the court below in convict­
ing them, all represent state actions enforcing 
racial discrimination. Such discrimination by the 
State or its officers, and such use of the criminal 
law machinery of the states to preserve racial seg­
regation is prohibited by the due process and equal 
protection clauses of the Fourteenth Amendment. 
As the Supreme Court recently wrote in Cooper v. 
Aaron, 358 U. S. 1, 17:

Thus the prohibitions of the Fourteenth 
Amendment extend to all action of the State 
denying the equal protection of the laws; 
whatever the agency of the State taking the 
action, see Virginia v. Rives, 100 U. S. 313; 
Pennsylvania v. Board of Directors of City 
Trusts of Phila., 353 U. S. 230; Shelley v. 
Kraemer, 334 U. S. 1, or whatever the guise 
in which it is taken, see Derrington v. Plum­
mer, (CA 5, Tex.) 240 F. 2d 922; Deoartment 
of Conservation & Development v. Tate (CA 
4 Va.) 231 F. 2d 615.



84

The principle that neither state or federal 
courts may use judicial power to enforce racial 
discrimination is clearly established. Shelley v. 
Kraemer, supra; Hurd v. Hodge, 334 U. S. 24 
(1948); Barrows v. Jackson, 346 U. S. 249 (1953).

The principle that police officers may not en­
gage in enforcing racially discriminatory practices 
has been applied in various cases akin to this one. 
In Valle v. Stengel, 176 F. 2d 697 (3rd Cir. 1949) 
it was held that state law enforcement officers de­
prived Negro citizens of rights protected by the 
Fourteenth Amendment and federal statutes im­
plementing that amendment, when they ejected 
them from a private amusement park in aid o f the 
park’s racial exclusion policy. The court in VaMe 
made specific reference to the statutory protec­
tion of the equal right of Negroes to make con­
tracts as protected by 42 United States Code §1981 
(former revised statutes §1977). The principles 
applied in Valle v. Stengel are sufficient to dispose 
of this case.

In another recent case the same principle was 
applied to the actions of police officers who arrest­
ed a group of Negroes and charged them with 
breach of the peace for refusal to obey a police de­
mand to move to the rear portion of a city bus set



85

apart for Negroes by bus company regulation. In 
Boman v. Morgan, 4 Race Eel. Law Reporter 1027, 
1031 (D. C. N. D. Ala. 1959) the court said:

A  charge of “ a breach of the peace”  is one 
of broad import and may cover many kinds of 
misconduct. However, the Court is of the 
opinion that the mere refusal to obey a re­
quest to move from the front to the rear of a 
bus, unaccompanied by other acts constitut­
ing a breach of the peace, is not a breach of 
the peace. In as far as the defendants, other 
than the Transit Company, are concerned, 
plaintiffs were in the exercise of rights se­
cured to them by law.

*  *  *

Under the undisputed evidence, plaintiffs 
acted in a peaceful manner at all times and 
were in peaceful possession of the seats which 
they had taken on boarding the bus. Such be­
ing the case, the police officers were without 
legal right to direct where they should sit be­
cause of their color. The seating arrange­
ment was a matter between the Negroes and 
the Transit Company. It is evident that the 
arrests at the barn were based on the refusal 
of the plaintiffs to comply with the request to 
move since those who did move, though equal­
ly involved except as to compliance, were not 
arrested.

Under the facts in this case, the officers 
violated the civil rights of the plaintiffs in ar­
resting and imprisoning them. Ordinance No. 
1487-F, and their “ willful”  refusal to move



86

when directed to do so, did not authorize or
justify their conduct.

The language given above was quoted on appeal of 
the case, though that aspect of the holding indicat­
ing that the Negroes were not entitled to relief 
against the Transit Company was reversed. Bo-
man v. Birmingham Transit Co.,------ F. 2d. _ _ _ ,
29 Law Week 2028 (5th Cir. July 12, 1960).

In general accord with the principle that state 
police officers, and those acting under the state’s 
authority, may not enforce racially discriminatory 
rules are Baldwin v. Morgan, 251 F. 2d 780 (5th 
Cir. 1958); Fleming v. South Carolina Elec. & Gas 
Co., 224 F. 2d 752 (4th Cir. 1955); Cf. Whiteside 
v. SouthernBusLines, 177 F. 2d 949 953 (6th Cir. 
1949) invalidating bus segregation rule on basis 
of the Commerce Clause but indicting that if state 
action is necessary it may be found in the action 
of police officers in ejecting a Negro from a bus.

The principle that the preservation of law and 
order cannot be accomplished by the exercise of the 
state’s police power to enforce racial discrimina­
tion was settled as long ago as Buchanan v. War- 
ley, 245 U. S. 60, 81 (1917), so it cannot matter 
that the police officers may have sincerely believed 
that they were acting properly to prevent disorder.



87

The conviction of the defendants represents a 
discriminatory administration of the criminal law 
in violation of the Fourteenth Amendment for the 
additional reason that the record is so devoid of 
evidence o f guilt that the conviction really rests 
upon no evidence. The defendants engaged in no 
conduct that is claimed to have been disorderly ex­
cept their refusal to obey the police order that they 
leave and not continue to seek food service in the 
BRIGGS case. In the SMITH case the defendants 
were arrested despite the fact that they left im­
mediately upon the request of the manager. And 
in the LUBBER case the defendants denied that 
the manager requested that they leave (although 
the manager testified that he requested each de­
fendant to leave) and stated that they left when it 
became apparent that they would not be served. 
Lupper then left the lunch room which was on the 
mezzanine floor and Robinson upon seeing other 
colored students leaving the lunch room, started 
leaving the store, when both defendants were ar­
rested on the ground floor. Thus they have been 
convicted without any evidence of any disorderly 
act or breach of the peace. The rule appliacble in 
this case was recently applied in THOMBSON v. 
CITY OF LOUISVILLE, 362 U. S. 199 (1960) 
where the court struck down convictions for “ dis­



88

orderly conduct”  and “ loitering”  on the ground 
that a criminal conviction founded upon no evi­
dence of guilt or criminality denies due process and 
equal protection of the laws. See also SCHWARE 
v. BOARD OF BAR EXAMINERS, 853 U. S. 232 
(1957); UNITED STATES ex rel. VAJTAUER 
v. COMMISSIONER, 273 U. S. 103, 106 (1927); 
MOORE v. DEMPSEY, 261 U. S. 86 (1923); 
YICK WO v. HOPKINS, 118 U. S. 356 (1886), 
and Cf. AKINS v. TEXAS, 325 U. S. 398, 402 
(1945); TOT v. UNITED STATES, 319 U. S. 
463, 473 (1943) concurring opinion); MOONEY 
v. HOLOHAN, 294 U. S. 103 (1935) .

C. Act 14 was alleged only in the LUPPER 
case and both defendants were found guilty of 
failing to leave Blass Department Store after hav­
ing been requested to do so by the manager. All 
that has been said here regarding Act 226 is equal­
ly applicable to Act 14.



89

It is entirely clear from the record in each 
case that the appellants were requested to leave the 
respective stores solely on account of their color.1

The appellants argue that Acts 14 and 226 
are being used against them solely because of the 
fact that they are Negroes who sought service at 
lunch counters heretofore reserved for white per-

h In the BRIGGS case, neither the manager or 
the owner requested the Negro students to leave, 
nor did they request the assistance of the police. 
The Assistant Manager of Woolworth’s testified 
as follows: (Tr. 106)

Q. Was the lunch counter closed when the 
police got there?

A. Yes, sir . . .  .
Q. And why did you close it?
A. Because the Negroes came in and sat 

down.
In the SMITH case, Officer Terrell testified 

as follows: (Tr. 55)
Q. Did they leave when the manager told 

them to leave?
A. All except Jackson.
Q. Then, with the exception of Jackson for 

the purpose of arrest, why did you arrest 
the other defendants?

A. Because they had taken seats at the 
lunch counter.

Q. In other words, it was your opinion, as a 
police officer, i f  a Negro sat down at a 
lunch counter, he was guilty o f some 
crime?

A. Yes, he is according to the law.



90

sons. The attempt to coerce appellants and other 
Negroes to not seek service at lunch counters,* (i) 2 
amounts to involuntary servitude in violation of 
Amendment 13 to the Constitution o f the United 
States. It should be clear to anyone that no white 
person would be arrested for doing no more than 
the appellants did and hence the use of these 
statutes denies to the appellants the equal protec­
tion of the laws guaranteed by not only the Four­
teenth Amendment to the Constitution of the 
United States, but also violates Article 11, Section 
3 and Section 18 of the Constitution of Arkansas. 
The motions to dismiss because of the unconstitu­
tional application of the statutes in question should 
have therefore been granted.

2. Even the trial judge seemed determined tô  con­
vict the appellants as (i) reflected by his attitude 
in the SMITH case before any testimony was 
heard and after the testimony was completed, (ii)

(i) (Tr. 40) The Court —  This is the law 
and I don’t see how you can violate it 
deliberately on the claim that it is un­
constitutional. What I am trying to 
avoid here is serious trouble. I don’t 
want a race riot if  I can help it.

(ii) (Tr. 90) The Court —  la m  going to 
fine these defendants the same as be­
fore, a fine of $500.00 and sixty days. 
I am trying to discourage this as 
much as I can.



91

III
THE EVIDENCE WAS NOT SUFFICIENT
TO SUSTAIN A CONVICTION
It is undisputed that in none of the three cases 

did any of the defendants engage in any of the 
acts or conduct enumerated by Act 226. All of the 
appellants were quiet, neatly dressed, courteous 
and well behaved. There is no testimony that any 
of them used any loud or offensive talk or that 
they made any threats or attempted to intimidate 
anyone. In the BRIGGS case, the police were not 
requested by the owner or manager of Wool worth’s 
to assist in any way. It was the Chief of Police 
who took it upon himself to order the lunch count­
er closed down and to order the defendants in that 
case to leave. The failure of the appellants in 
BRIGGS to comply with the request of the Chief 
of Police, that they leave the store, could in no way 
support a conviction for the alleged violation of 
Act 226.

In the SMITH case, the defendants were re­
quested by the manager to leave the lunch counter 
at Pfeifer’s Department Store and they left when 
requested, although the appellant Jackson alleged­
ly took a little longer to leave. The appellants were 
nevertheless arrested for the alleged violation of 
Act 226 and convicted.



92

In the LUPPER case, when the defendants 
were requested to leave the lunch room of Blass’ 
Department Store by the manager, 3 the manager 
stated that they continued to sit there but the ap­
pellants did not state positively that they would not 
leave. 4 The manager stated that he then left to 
get the police, walked downstairs, out of the build­
building and across the street where he found a 
policeman (Tr. 66), that he was only gone two or 
three minutes (Tr. 67) and that he and the of­
ficers returned and met the appellants on the first 
floor, apparently on their way out. (Tr. 71).

There is no evidence that the appellants en­
gaged in any conduct or language prohibited by 
Act 226. Indeed, the contrary affirmatively ap­
pears from the prosecution’s evidence. Penal stat­
utes must be interpreted strictly against the state 
and liberally in favor of the accused. (See 50 Am. 
Jur., Statutes, Sec. 407, and cases cited therein.)

3. Appellant Lupper testified that the manager 
did not ask him to leave (Tr. 79) and the appel­
lant Robinson testified that he did not get any 
closer to the lunch counter than the top of the 
stairs. (Tr. 97).
4. (Tr. 72). “ I asked them to leave and they said, 
‘We don’t feel we ought to. Why should we?’ The 
questions varied and the answers varied from one 
to another, something like that.”



93

Act 226 should be construed and applied in accord­
ance with the maxim ejusdem generis. Where gen­
eral words follow a designation of particular sub­
jects, the meaning of the general words will be con­
strued to be restricted by the prior particular 
designation, 50 Am. Jur., Statutes, Sec. 249. As 
applied to Act 226, this principle requires that the 
general words be limited to the particular conduct 
and language described prior thereto, e. g.— “ Loud 
and offensive talk, the making of threats or at­
tempting to intimidate.”  The words “ or any other 
conduct”  must be interpreted to mean acts or con­
duct similar to that previously set out and in the 
cases at bar there was absolutely no such conduct 
or langauge on the part of any of the appellants 
which could support a conviction under Act 226.

The evidence will not support a conviction of 
the appellants for the violation of Act 226 or Act 
14 because there was no evidence of criminal in­
tent. The implied basis for prosecution is appar­
ently the theory that the appellants’ conduct was 
such as to cause “ a disturbance or breach of the 
peace or threatened breach of the peace.”  These 
Acts must be construed to require proof of a speci­
fic criminal intent to provoke a breach of the peace 
where the conduct does not violate any of the pro­
hibited acts which are defined in the statutes. To



94

convict the appellants otherwise would violate 
their rights under the Fourteenth Amendment. 
This action on the part of the State of Arkansas 
also abridges the appellants’ constitutional right 
to freedom of contract. Valle v. Stengel, 176 F. 2d 
697 (C. A. 3, 1949).

On the basis of the proof made it would be a 
denial of due process of law and the equal protec­
tion of the laws to convict the defendants, for such 
a conviction would rest upon no evidence of guilt 
or culpability and would constitute a discrimina­
tory administration of the criminal law. THOMP­
SON v. CITY OF LOUISVILLE,____U. S ._____,
4 L. ed. 2d 654 (1960); SCHWARE v. BOARD 
OF BAR EXAMINERS, 353 U. S. 232; UNITED 
STATES ex rel V AIT AUER v. COMMISSION­
ER, 273 U. S. 103, 106; MOORE v. DEMPSEY, 
261 U. S. 86, YICK WO v. HOPKINS, 118 U. S. 
356, (1886). Compare: AKINS v. TEXAS, 325 
U. S. 398, 402; TOT v. UNITED STATES, 319 
U. S. 463, 473 (concurring opinion); MOONEY v. 
HOLOHAN, 294 U. S. 103.



95

iv.
THE COURT ERRED IN REFUSING TO 

GIVE DEFENDANTS REQUESTED IN­
STRUCTIONS NUMBERS 3 and 5 IN 
THE LUPPER CASE.

The appellants in the LUPPER case request­
ed that the following instructions be given to the 
jury and same were refused by the Court over the 
objections of the appellants. (Tr. 100).

Defendant’s Instruction No. 3:

“ You are instructed that if  you find from 
the evidence that the conduct of other persons 
in the Blass Department store at the time 
complained of in this lawsuit was such as to 
tend to create a disturbance of the peace, or 
threaten a breach of the peace, but further 
find that the defendants did nothing more to 
create or bring about this conduct on the part 
of other persons other than by their presence 
at the lunch counter or in the restaurant and 
their request for service therein, then you 
should find the Defendants not guiltv as to 
Act 226.

MR. BRANTON: Note the objections of the 
Defendants.

THE COURT: Save his exceptions.

Defendant’s Instruction No. 5:
You are instructed as a matter of law that 

the Defendants had a legal right to enter the



96

Blass Department Store at the time of the in­
cident complained of in the information and 
that they had a right to enter the restaurant 
or go to the lunch counter in said store and 
to request service at said store and that the 
actions of the Defendants, or either of them, 
in seeking service at the said lunch counter 
or restaurant is not in of itself a violation of 
itself a violation o f any law.

ME. BEAN TON : Note the objections of the 
Defendants.

THE COUET: Save his exceptions.

The Court erred in refusing to give the above 
instructions in that the content and matter dis­
cussed in these instructions were not covered by 
any other instructions given by the Court, and the 
requested instructions were applicable to the ap­
pellants’ theory o f the case. VAUGHN v. STATE 
57 Ark. 1 20 S. W. 588. Further, the appellants 
had a right to have these instructions given to the 
jury because they were not inconsistent with the 
evidence, nor were they conflicting or argumen­
tative: JONES v. STATE, 89 Ark. 213, 116 S. W. 
230; PRICE v. STATE, 114 Ark. 398, 170 S. W. 
235.



97

V

THE JUDGMENT WAS EXCESSIVE AND 
HARSH,

The judgment of the Court was excessive and 
harsh in BRIGGS and it is apparent from the 
Court’s statement that there was passion and prej­
udice in the Court’s statement, “ The Court is giv­
ing to try to keep the peace in this town, do what 
he can to discourage the wilful and deliberate at­
tempts to stir up racial strife. The fines will be 
$500.00 and 60 days.”  In HADLEY v. STATE, 
117 SW 2d 352 this honorable Court held: “ Even 
if the law of the state does fix 21 years as a maxi­
mum penalty for larceny it was not the intention 
of the lawmaking body that such maximum should 
be invoked except as punishment for represensible 
conduct in aggravation of the particular act. Cruel 
and unusual punishments are prohibited by our 
Constitution.”

There was nothing reprehensible in the acts 
of any of the defendants as the State’s witnesses 
testified repeatedly.

The Court had apparently made up its mind 
before hearing the evidence in the SMITH case as 
reflected by a statement on page 40 of Transcript 
No. 4494, “ What I am trying to avoid here is seri­



98

ous trouble. I don’t want a race riot if  I can help 
it.”  At this time there was no evidence before the 
Court upon which it could base this statement. 
Upon judgment against these defendants the Court 
made the statement, “ I am going to fine these de­
fendants the same as before, a fine of $500.00 and 
sixty days. I am trying to discourage this as much 
as I can.”  “ Further, the Court erred in sentenc­
ing the defendant Melvin Jackson $500.00 and 
costs and six months, stating that “ he is the one 
who wouldn’t get up. At least that is the undis­
puted testimony before the Court.”

The testimony of the manager o f the store, W. 
T. Mitchell, was that he didn’t request all o f the 
boys to leave and that he didn’t know which ones 
he did. It is apparent that the presumption of in­
nocence was not extended to this defendant.

This honorable Court should under the power 
granted it by Arkansas Statutes 27-2144 reverse 
the decision in these cases, or in the alternative 
should reduce the fines and sentences assessed con­
siderably. The appellants are all college students, 
who have been caught up in one of the great moral 
issues of our times. The appellants were using the 
only means available to them to get a determina­
tion of their constitutional rights and to seek equal­
ity of treatment in business establishments. This



99

issue is one which has captured the attention of 
the major political parties of our nation, as evi­
denced by their respective political platforms, and 
our Courts should not permit the machinery of the 
State to be used in fostering private racial preju­
dices.

CONCLUSION

The appellants in each of the respective cases 
herein filed timely motions, both at the beginning 
of the trials and at the conclusion of the trials, to 
have Acts 14 and 226 of the Acts of 1959, of the 
General Assembly of Arkansas, declared uncon­
stitutional, and appellants filed other timely mo­
tions and objections to protect the errors complain­
ed of in the respective records, and it would un­
duly burden this Brief to set out each of the said 
motions or objections herein.

WHEREFORE, the appellants respectfully 
pray that the judgments in each of the cases here­
in be reversed.

Respectfully submitted,

HAROLD B. ANDERSON and
W ILEY A. BRANTON,

Attorneys for Appellants